UC-NRLF 


LIBRARY 

OF    THE 

UNIVERSITY  OF  CALIFORNIA. 

Clans 


A  TREATISE 


ON 


Petroleum  and  Natural  and 
Manufactured  Gases 


By  DANIEL  D.  DONAHUE 
<  I 


* 


UNIVERSITY 


BLOOMINGTON,  ILLINOIS 
Pantograph .  Printing  and  Stationery   Co. 

1902 


COPYEIGHT,    1902. 

BY  DANIEL  D.  DONAHUE. 


GENERAL 


PREFACE. 


This  work  was  not  originally  prepared  with  the 
idea  of  having  it  published,  but  was  intended  for  my  own 
private  use  so  that  the  interests  of  my  clients  as  well 
as  my  own  might  be  better  preserved.  In  view  of  the 
importance  of  this  branch  of  the  law  it  was  then  thought 
that  the  lawyers  might  be  benefited  by  its  publication 
and  that  their  labors  in  finding  out  what  the  law  is 
might  be  at  least  lessened. 

DANIEL  D.  DONAHUE, 

BLOOMINGTON,  ILLINOIS. 
February  19,  A.D.  1902. 


101615 


TABLE   OF   CONTENTS. 


CHAPTER. 

I— GENERAL  PRINCIPLES. 
II— PETROLEUM  AND  GAS  AS  PERSONAL  PROPERTY. 

Ill— PARTNERSHIP  IN   THE  PRODUCTION  OF   PETROLEUM   AND 
GAS. 

IV— LIFE  TENANTS  AND  TENANTS  IN  DOWER. 
V— TENANTS  IN  COMMON. 

VI— LIMITATION  LAWS  AND  ADVERSE  POSSESSION. 
VII— FIXTURES. 
VIII— TAXATION. 

IX— THE  USE  OF  STREETS  AND  HIGHWAYS. 
X— LIENS. 

XI— RIGHT   TO  ACQUIRE   LAND   FOR   PIPE   LINES,  POWER   OF 
EMINENT  DOMAIN. 

XII— EXECUTION  OF  OIL  AND  GAS  LEASES. 
XIII— OIL  AND  GAS  LEASES. 
XIV— RENTS  AND  ROYALTIES. 
XV— RESERVATIONS  AND  LOCATION  OF  OIL  CLAIMS. 
XVI— RATES  AND  SUPPLY  OF  GAS. 
XVII— DAMAGES  CAUSED  BY  GAS. 

XVIII— NEGLIGENCE    AFFECTING    THE   RIGHT   TO   RECOVER    FOR 
INJURIES. 

XIX- INJURIES  CAUSED  BY  PETROLEUM  AND  ITS  PRODUCTS. 
XX— TRANSPORTATION  OF  OIL. 
XXI— NUISANCES  . 
XXII— USE  OF  OIL  AND  GAS  AFFECTING  INSURANCE. 


Petroleum    and    Natural   and    Manufac- 
tured  Gases. 

GENERAL   PRINCIPLES. 


CHAPTER  I. 

SECTION  1.  DEFINITION. — The  word  "petroleum" 
comes  from  the  Latin  words  petra — rock,  and  oleum — oil, 
literally  meaning^jrock^^  I  liquid, 

-i-A—  n  posed 

revices 
.  was  a 

ERRATUM.  cludes 

stance 
bright 
ieties, 

n  is  dc- 

Le  ghter 

ellow 
sessed."  ondi- 

com- 
able. 

^o^iuoling 

^^^  uccumes  black.  Asphaltum  is  defined  as  a  min- 
eral pitch  or  compact  native  bitumen.  It  is  brittle,  of  a 
black  or  brown  color  and  it  melts  and  burns  and  leaves 
no  residue,  and  is  used  largely  for  paving  and  for  cover, 
ing  the  roofs  of  houses. 

SEC.  2.  WHERE  FOUND. — Petroleum  was  known  to 
the  Greeks,  Romans,  and  Persians  at  a  very  early  time, 
and  is  found  in  great  quantities  near  the  shores  of  the 
Caspian  Sea,  in  Russia,  but  it  was  not  developed  in  that 
f  region  for  commercial  purposes  until  a  very  late  day.  It 
is  found  in  abundance  in  Western  Pennsylvania  and  New 


TABLE   OF   CONTENTS. 


CHAPTER. 

I— GENERAL  PRINCIPLES. 
II— PETROLEUM  AND  GAS  AS  PERSONAL  PROPERTY. 

Ill— PARTNERSHIP  IN  THE  PRODUCTION  OF  PETROLEUM  AND 
GAS. 

TV— LIFE  TENANTS  AND  TENANTS  IN  DOWER. 


i 

' 


XV— RESERVATIONS  AND  LOCATION  OF  OIL  CLAIMS. 
XVI— RATES  AND  SUPPLY  OF  GAS. 
XVII— DAMAGES  CAUSED  BY  GAS. 

XVIII — NEGLIGENCE    AFFECTING    THE   RIGHT   TO   RECOVER    FOR 
INJURIES. 

XIX— INJURIES  CAUSED  BY  PETROLEUM  AND  ITS  PRODUCTS. 
XX— TRANSPORTATION  OF  OIL. 
XXI— NUISANCE  s . 
XXII— USE  OF  OIL  AND  GAS  AFFECTING  INSURANCE. 


Petroleum    and    Natural   and    Manufac- 
tured  Gases. 

GENERAL  PRINCIPLES. 


CHAPTER  I. 

SECTION  1.  DEFINITION. — The  word  "petroleum" 
comes  from  the  Latin  words  petra — rock,  and  oleum — oil, 
literally  meaning-  rock-oil,  and  is  defined  as  a  liquid, 
inflammable,  bituminous  substance,  and  is  composed 
largely  of  hydrogen  and  carbon  and  exudes  from  crevices 
in  rocks,  or  on  the  surface  of  the  water.  Bitumen  was  a 
generic  name  used  by  the  Romans  and  now  includes 
asphaltum,  naphtha  and  petroleum. 

Bitumen  is  defined  as  a  mineral  pitch,  a  substance 
having  a  pitch-like  odor  and  burns  readily,  with  a  bright 
flame,  without  any  residue.  There  are  many  varieties, 
from  liquid  naphtha  to  solid  asphaltum.  Naphtha  is  de- 
fined as  a  volatile,  limpid,  bituminous  liquid,  lighter 
than  water  and  of  peculiar  odor  and  of  a  light  yellow 
color,  occurring  in  nature  in  a  more  or  less  pure  condi- 
tion near  coal  deposits  and  other  regions.  It  is  a  com- 
pound of  carbon  and  hydrogen  and  very  inflammable. 
By  long  keeping,  it  hardens  into  a  substance  resembling 
resin  and  becomes  black.  Asphaltum  is  defined  as  a  min- 
eral pitch  or  compact  native  bitumen.  It  is  brittle,  of  a 
black  or  brown  color  and  it  melts  and  burns  and  leaves 
no  residue,  and  is  used  largely  for  paving  and  for  cover, 
ing  the  roofs  of  houses. 

SEC.  2.  WHERE  FOUND. — Petroleum  was  known  to 
the  Greeks,  Romans,  and  Persians  at  a  very  early  time, 
and  is  found  in  great  quantities  near  the  shores  of  the 
Caspian  Sea,  in  Russia,  but  it  was  not  developed  in  that 
region  for  commercial  purposes  until  a  very  late  day.  It 
is  found  in  abundance  in  Western  Pennsylvania  and  New 


6  Natural  Gas  Defined. 

York,  and  was  known  to  exist  there  from  the  earliest 
settlement  of  the  country,  but  it  was  not  utilized  for 
commercial  purposes  until  1859,  when  a  well  was  bored 
at  Titusville,  Pennsylvania,  on  Oil  Creek,  a  branch  of 
the  Allegheny  River;  and  since  that  time,  oil  has  been 
produced  in  West  Virginia,  Ohio,  Indiana  and  Kansas, 
and  to  some  extent  in  Kentucky,  Tennessee,  Illinois  and 
Colorado;  and  it  also  covers  a  large  area  in  Southern 
California.  The  latest  oil  fields  are,  found  in  the  State 
of  Texas,  and  so  far  the  wells,  in  that  region,  promise  to 
be  the  greatest  producers  in  the  world;  and  also  since  the 
discovery  in  Texas,  oil  has  been  found  in  Indian  Terri- 
tory and  Oklahoma. 

SEC.  3.  Natural  Gas  is  defined  as  a  gaseous  member 
of  the  paraffin  series,  petroleum  being  the  liquid  member. 
It  is  produced  by  the  decomposition  of  animal  and  vege- 
table matter  and  is  stored  under  a  stratum  of  rock,  which, 
when  penetrated,  sets  it  free.  It  is  practically  identical 
with  marsh  gas,  known  to  miners  as  fire  damp,  or  marsh 
gas,  which  consists  chiefly  of  light,  carbureted  hydrogen 
and  is  combustible  and  is  formed  naturally  in  the  earth, 
and  consists  of  such  elements  as  marsh  gas,  hydrogen 
ethylene,  nitrogen  and  carbonic  acid  and  carbonic  oxid 
It  burns  brightly  and  leaves  no  residue. 

SEC.  4.  WHERE  FOUND. — Natural  gas  has  been  known 
for  many  centuries  and  was  discovered  in  the  old  world 
at  a  very  early  day,  but  it  is  found  in  large  quantities  in 
the  United  States.  It  was  first  used  for  commercial  and 
economical  purposes  at  Fredonia,  New  York,  in  1821,  but 
not  extensively.  The  extensive  use  of  natural  gas  began 
in  1872  at  Fairview,  Pennsylvania,  and  it  was  first  used 
for  smelting  purposes  at  a  place  called  Edna  Borough, 
near  Pittsburg,  in  1875,  and  in  1886  it  was  brought  up 
through  pipes  to  Pittsburg  from  a  place  called  Murray  - 
ville,  nineteen  miles  from  Pittsburg;  and  also  it  was  dis- 
covered in  large  quantities  in  West  Virginia,  Ohio  and 
Indiana  and  is  now  used  very  extensively  as  fuel  and 
illuminating  and  for  manufacturing  and  domestic  pur- 


Artificial  Gas  Defined.  7 

poses.  It  is  transported  through  pipe  lines  to  the  place 
of  consumption  and  is  cheap  and  clean  as  a  fuel.  Wher- 
ever petroleum  is  found  natural  gas  is  also  found. 

SEC.  5.  Artificial  gas  is,  in  the  popular  language,  a 
compound  of  various  gases,  used  for  illuminating  and 
heating  purposes;  a  mixture  of  carbureted  hydrogen, 
olefiant  gas,  or  bi-carbureted  hydrogen,  which  gives  a 
brilliant  light  when  burned,  and  is  the  common  gas  used 
for  illuminating  purposes.  The  common  kind  is  coal 
gas,- obtained  from  bituminous  coal  by  carbonization  in 
retorts  at  a  high  temperature.  A  carbonated  hydrogen 
gas,  called  water  gas,  resulting  from  the  passing  of  steam 
through  a  mass  of  incandescent  carbon  admixed  by 
hydro-carbon.  Oil  gas  is  an  illuminating  gas  obtained 
by  distilling  of  petroleum  at  a  high  temperature  or  other 
liquid  hydro-carbons. 

SEC.  6.  THEORETICAL. — It  must  be  borne  in  mind 
that  the  facts  on  which  the  rights  to  oil  and  gas  beneath 
the  surface  are  adjusted  are  based  largely  on  theory,  or 
on  the  assumption  that  oil  and  gas  exist  in  the  cavities 
of  the  earth  in  a  certain  state,  and  on  these  assumptions 
the  legal  principles  announced  by  the  courts  are  founded. 
It  is  a  generally  accepted  theory  that  natural  gas  and 
petroleum  are  confined,  within  certain  productive  regions, 
in  large  reservoirs  or  series  of  reservoirs,  and  that  the 
series  of  reservoirs  are  connected  together  by  channels 
and  that  the  petroleum  and  gas  flow  freely  through  the 
channels  from  one  reservoir  to  another,  so  the  gas  and 
petroleum  that  may  find  their  way  to  the  surface  through 
wells  on  certain  lands  may  come  from  the  lands  of  other 
owners.  It  is  now  generally  accepted  that  the  oil  and 
gas  are  found  beneath  a  layer  or  series  of  layers  of  rock 
generally  called  "cap  rock,"  and  that  when  this  cap 
rock  is  penetrated  with  a  drill  the  gas  finds  its  way  to 
the  surface  through  the  opening  thus  made,  and  this  is 
also  true  of  the  petroleum  found  in  the  coast  region  of 
Texas.  At  the  present  time  there  exist  in  that  region 
about  eighty-five  petroleum  wells,  and  all  of  which  pro- 


8  Petroleum  as  Land. 

duce  oil  in  large  quantities  from  the  natural  rock  pres- 
sure; but  in  other  regions  the  natural  pressure  is  not 
sufficient  to  cause  the  petroleum  to  flow  to  the  surface. 
So  the  theory  that  the  petroleum  and  gas  flow  freely 
beneath  the  surface  of  the  earth  has  figured  largely  in 
adjusting  the  rights  of  the  owner  of  land  in  the  produc- 
tion of  these  products  and  the  right  of  such  land  owner 
with  reference  to  the  rights  of  other  land  owners  within 
the  particular  oil  and  gas  region. 

SEC.  7.  OIL  AS  LAND. — The  legal  definition  of  oil  is: 
"Oil  is  a  mineral,  and  being  a  mineral  is  part  of  the  real- 
ty," so  held  on  a  question  as  to  what  interest  was  con- 
veyed to  a  lessee,  his  heirs  and  assigns. *  Petroleum  oil 
in  its  place,  in  the  land,  is  part  of  the  land  itself,  just  as 
are  coal,  timber,  and  iron  ore;  so  held  where  a  tenant 
for  life  was  committing  acts  of  waste  by  taking  oil  from 
the  lands;*  and  also  so  held  with  respect  to  the  dis- 
position of  oil  by  lease  of  an  infant's  land;3  and  also  of 
an  incompetent  person's  land;4  and  where  a  deed  reserves 
"all  mines,  minerals  and  metals  in  and  under  the  land," 
the  court  held  it  to  be  a  mineral  and  part  of  the  land  and 
within  the  reservation  in  the  deed;5  and  where  a  grantor 
reserves  ten  acres  out  of  a  larger  tract  conveyed  "upon 
which  no  wells  shall  be  drilled  without  the  written  con- 
sent of  the  party  of  the  first  part,"  the  oil  passed  to  the 
grantee  under  the  deed  as  part  and  parcel  of  the  land 
and  was  his  while  in  or  on  it  and  subject  to  his  control;6 
and  on  a  question  of  waste,  between  a  lessee  and  a  sub- 
sequent lessee  who  was  taking  oil  from  the  land,  the  oil 
was  treated  as  part  and  parcel  of  the  realty  while  in 
place;7  and,  when  the  owner  of  oil  lands  placed  a  line  of 

1.  Funk  vs.  Haldeman,  53  Pa.,  229,  249. 

2.  Williamson  vs.  Jones,  43  W.  Va.,  562;  27  S.  E.,  411;  38  L.  R. 

A.,  694. 

3.  Stoughton's  Appeal,  88  Pa.,  198. 

4.  South  Pennsylvania  Oil  Co.  vs.  Mclntyre,  44  W.  Va.,  296. 

5.  Murray  vs.  Allard,  100  Tenn.,  100;  43  S.  W.,  353;  39  L.  R. 

A.,  249. 

6.  Brown  vs.  Spelman,  155  U.  S.,  665. 

7.  Bettman  vs.  Harness,  42  W.  Va.,  443;  26  S.  E.,  471;  36  L.  R. 

A.,  566. 


Gas  as  Land.  9 

oil  wells  along-  his  line  close  to  the  adjoining-  lands  of 
another,  who  sought  to  restrain  the  former  from  operat- 
ing his  wells  because  such  operation  would  drain  his 
lands,  the  petroleum  was  classed  as  a  mineral  and  part 
of  the  land,  while  in  the  ground,  and  forms  part  of  the 
land  while  the  petroleum  is  on  the  particular  tract,  but 
when  it  flows  away  to  another  tract  it  then  forms  a  part" 
of  the  latter  tract. 1  It  may  be  stated  as  a  general  propo- 
sition that  oil  is  a  mineral  and  while  in  place  in  the  earth 
it  is  part  of  the  realty. 3 

SEC.  8.  GAS  AS  LAND. — Natural  gas  is  a  mineral, 
and  while  in  place  is  part  of  the  realty;  so  held  in  a  case 
where  the  owner  of  the  surface  claimed  title  to  the  gas 
by  adverse  possession  and  where  the  gas  rights  had  been 
leased  to  a  third  person;3  and  where  a  life  tenant  opens 
new  wells  it  is  waste,  because  gas  is  a  mineral  and  a  part 
of  the  realty;4  and  in  a  reservation,  in  a  deed  of  "all  the 
mines,  minerals  and  metals  in  and  under  the  land, "nat- 
ural gas  comes  within  the  terms  of  the  reservation  as  be- 
ing a  mineral  forming  part  of  the  land.5  Natural  gas  is 
a  fluid  mineral  substance,  subterranean  in  its  origin  and 
location,  possessing  in  a  restricted  degree  the  properties 
of  underground  waters  and  resembling  waters  in  some  of 
its  habits;  so  held  in  an  action  by  one  landowner  to  re- 
strain another  from  taking  gas  from  a  well  by  means  of 
a  pump.6  And  natural  gas  is  part  of  the  realty  under  a 

1.  Kelly  vs.  Ohio  Oil  Co.,  57  Ohio  St.,  317;  39  L.  R.  A.,  765. 

2.  Kier  vs.  Peterson,  41  Pa.,  361;   Gill  vs.  Weston,  110  Pa.,  313; 

Dunham  vs.  Kirkpatrick,  101  Pa.,  43;  47  Am.  Rep.,  696; 
Blakley  vs.  Marshall,  174  Pa.,  425;  Wilson  vs.  Hughes,  43 
W.  Va.,  826;  39  L.  R.  A.,  292;  Haid  vs.  Reed,  15  B.  Hon., 
479;  Chicago  &  A.  Oil  and  Min.  Co.  vs.  U.  S.  Petroleum  Co., 
57  Pa.,  83;  Moore  vs.  Jennings,  47  W.  Va.,  181. 

3.  Westmoreland  &  C.  Natural  Gas  Co.  vs.  DeWitt,  130  Pa.,  235; 

5  L.  R.  A.,  731. 

4.  Marshall  vs.  Mellon,  179  Pa.,  397. 

5.  Murrey  vs.  Allard,  100  Tenn.,  100;   39  L.  R.  A.,  249;  43  S. 

W.,  353. 

6.  Manufacturers  Gas  and  Oil  Co.  vs.  Indiana  Natural  Gas  and 

Oil  Co.,  —  Ind.,  — ;  57  N.  E.,  912;  50  L.  R.  A.,  768. 


10  Nature  of  the  Estate. 

reservation  of  ten  acres  out  of  a  larger  tract  "upon  which 
no  wells  shall  be  drilled  without  the  written  consent  of 
the  party  of  the  first;"1  and  under  the  tariff  laws  of  1890 
mineral  gas  which  is  imported  for  fuel  and  illuminating 
purposes,  comes  under  the  classification  of  crude  bitumen 
or  crude  mineral,*  and  where  gas  is  unlawfully  extracted 
from  the  land,  the  gas  so  taken  is  a  part  of  the  land  and 
is  an  act  of  irreparable  injury.* 

SEC.  9.  NATURE  OF  THE  ESTATE. — The  property 
rights  in  and  to  oil  and  gas  differ  essentially  from  the 
owner's  rights  in  lands  and  chattels:  Thus,  the  owners 
of  mineral  rights  in  oil  and  gas  cannot  have  partition, 
because  they  are  not  capable  of  distinct  ownership  in 
place,  for  they  may  be  in  one  man's  land  today,  forming 
a  part  of  it,  and  tomorrow  they  may  form  part  of  the 
land  of  another  tract,  without  any  act  being  done  by 
either  landowner;4  so  where  the  owner  of  a  gas  well 
permits  it  to  escape  and  go  to  waste,  he  can  be  enjoin'ed 
from  so  doing  under  a  statute  prohibiting  waste,  because 
the  owner  of  the  well  has  no  estate  or  title  to  the  gas 
until  it  is  actually  reduced  into  possession  by  being 
placed  in  pipes  or  tanks;5  and  where  the  owners  of  nat- 
ural gas  take  it  from  the  common  reservoir,  one  may 
enjoin  the  other  from  extracting  the  gas  with  a  gas 
pump  under  a  statute  prohibiting  the  commission  of 
waste,  because  he  has  no  title  to  the  oil  and  gas  other 
than  the  mere  right  to  drill  on  his  own  land  to  take 
them  into  his  possession,  and  as  long  as  he  has  no  title 
or  estate,  the  legislature  has  a  right  to  prescribe  his 
mode  of  taking  them.6  Where,  however,  there  is  no  stat- 

1.  Brown  vs.  Spelman,  155  U.  S.,  665. 

2.  United  States  vs.  Buffalo  Natural  Gas  Fuel  Co.,  172 U.  S.,  339; 

45U.  S.  App.,  345;  7<s  Fed.  R.,  110. 

3.  Moore  vs.  Jennings,  47  W.  Va.,  181. 

4.  Hall  vs.  Vernon,  47W.Va.,297;  34  S.  E.,764;  49  L.  E.  A.,  464. 

5.  State  of  Indiana  vs.  Ohio  Oil  Co.,  150  Ind.,  21;  50  N.  E.,  1128; 

47  L.  R.  A.,  627;  Ohio  Oil  Co.  vs.  Indiana,  177 U.  S.,  190. 

6.  Manufacturers  Gas  and  Oil  Co.  vs.  Indiana  Natural  Gas  and 

Oil  Co.,  —  Ind.,  — ;  57  N.  E.,  912;  50  L.  R.  A.,  768;  Ohio 
Oil  Co.  vs.  Indiana,  177 U.  S.,  190. 


Nature  of  the  Estate.  11 

ute  prohibiting  the  waste  of  gas  or  the  taking  of  it  from 
the  common  reservoir,  an  injunction  will  not  lie  to  pre- 
vent these  acts.1  So  under  a  lease  giving  the  lessor  one- 
eighth  of  the  product  and  the  lessee  seven-eighths,  the 
ownership  was  held  not  to  change  while  the  oil  remained 
in  the  rocks;2  and  where  a  lease  gives  the  lessee  a  right 
which  is  exclusive  to  produce  all  the  oil  and  gas  on  cer-~ 
tain  lands  for  a  period  of  years  no  estate  vests  in  the 
lessee  and  the  extent  of  his  claim  is  a  mere  right  to  drill 
and  produce  oil  and  gas  which  may  be  found  on  the  land. 3 

SEC.  10.  COMPARED  TO  ANIMALS  FERAE  NATURAE. 
— What  animals  ferae  naturae  are  to  the  animal  world,  so 
are  water,  oil  and  gas  to  the  mineral  world;  and  water, 
oil  and  gas  may  be  classed  by  themselves  as  minerals 
ferae  naturae,  if  the  analogy  be  not  too  fanciful.  In  com- 
mon with  animals  and  unlike  other  minerals  they  have  a 
power  and  tendency  to  escape  without  the  volition  of  the 
owner.4  They  form  a  part  of  the  land  while  they  are  in 
or  on  the  land  in  situ,  but  their  fugitive  and  wandering 
existence  within  the  limits  of  any  particular  tract  is  un- 
certain,5 and,  when  they  escape  and  go  in  toother  land  or 
come  within  another's  control,  the  title  of  the  former  is 
gone  and  they  no  longer  form  part  of  his  realty.  *  Oil 
and  gas  are  minerals  of  a  peculiar  nature  and  the  rules 
and  principles  of  law,  governing  other  minerals,  do  not 
apply  generally  to  mineral  oil  and  natural  gas,  and  they 
cannot  be  dealt  with  on  the  principles  applicable  to  un- 
derground waters,  as  the  distinctions  are  so  marked  that 
the  principles  the  courts  apply  to  waters  are  not  adapted 

1.  Wheeler  vs.  Hague,  157  Pa.,  324;  22  L.  E.  A.,  141;  Jones  vs. 

Forest  Oil  Co.,  194  Pa.,  379;  48  L.  E.  A.,  748;  44  Atl.,1074. 

2.  Carter  vs.  County  of  Tyler,  45  W.  Va.,  806;  43  L.  E.  A.,  725; 

32S.E.,216. 

3.  Eaton  vs.  Allegheny  Gas  Co.,  122  N.  Y.,  122;  25  N.  E.,  259. 

4.  Westmoreland  and  Cambria  Natural  Gas  Co.  vs.  DeWitt,  130 

Pa.,  235;  25  L.  E.  A.,  731. 

5.  Brown  vs.  Vandergrift,  80  Pa.,  147,  148. 

6.  Westmoreland  and  Cambria  Natural  Gas  Co.  vs.  DeWitt,  130 

Pa.,  235;  5  L.  E.  A.,  731;  Peoples  Gas  Co.  vs.  Tyner,  131 
Ind.,  277;  31  N.  E.  60:  16  L.  E.  A.,  443;  Townsend  vs. 
State,  147  Ind.,  624;  47  N.  E.,  21;  37  L.  E.  A.,  294. 


12  No  Absolute  Property  Right  In  Them. 

to  the  adjustment  of  rights  growing  out  of  petroleum  and 
natural  gas.1 

SEC.  11.  No  ABSOLUTE  PROPERTY  RIGHTS  IN  OIL 
AND  GAS. — It  is  true  that  petroleum  oil  and  natural  gas 
are  included  in  the  comprehensive  idea  which  the  law 
attaches  to  the  word  land,  and  are  parts  of  the  soil  in 
which  they  are  found,  but  a  grant  of  oil  and  gas  is  not  a 
grant  of  the  soil,2  and  such  a  grant  passes  nothing,  for 
a  common  law  action  in  ejectment  will  lie.3  Petroleum 
and  gas  are  supposed  to  exist  in  a  reservoir  or  series  of 
reservoirs,  connected  together  by  a  network  of  under- 
ground channels,  and  from  their  nature,  they  flow  freely 
from  one  place  to  another  within  the  gas  and  oil  area,  so 
the  owners  of  oil  and  gas  rights  have  no  absolute  prop- 
erty in  the  oil  and  gas  as  they  exist  in  their  natural  state 
beneath  the  surface  of  the  earth.4 

SEC.  12.  DISTINCTION  AS  TO  TITLE  BETWEEN  PETRO- 
LEUM AND  NATURAL  GAS,  AND  ANIMALS  FERAE  NATURAE. 
— The  courts  have  likened  oil  and  natural  gas  to  animals 
ferae  naturae,  such  as  fish,  game  and  other  common  prop- 
erty; but  the  comparison  has  reference  more  to  the  ten- 
dency of  oil  and  gas  to  wander  away  from  one  tract  of 
land  of  which  it  formed  a  part,  and  become  the  part  of 
another  tract  of  land,  than  to  the  title  and  estate  in  petro- 
leum and  natural  gas.  In  England  title  to  the  game  was 
vested  in  the  king,  and  he  could  grant  any  of  his  subjects 
a  right  to  take  such  game;5  and,  on  the  settlement  of  this 
country,  such  right  was  vested  in  the  colonial  govern- 

1.  Manufacturers  Gas  and  Oil  Co.  vs.  Indiana  Nat.  Gas  and  Oil 

Co.,  —  Ind.,  — ;  57  N.  E.,  912;  50  L.  R.  A.,  768. 

2.  Peoples  Gas  Co.  vs.  Tyner,  31  N.  E.,  60;  131  Ind.,  277;  16  L. 

E.  A.,  443;  Gould  on  Waters,  (2nd  ed.,  sec.  293). 

3.  Dark  vs.  Johnston,  55  Pa.,  164;  93  Am.  Dec.,  732;  Hall  vs. 

Vernon,  47  W.  Va.,  181;  34  S.  E.,  764;  49  L.  R.  A.,  464; 
Thompon's  App.,  101  Pa.,  225. 

4.  State  of  Indiana  vs.  Ohio  Oil  Co.,  150  Ind.,  21;   47  L.  R.  A., 

627;  49  N.  E.,  809;  Ohio  Oil  Co.  vs.  Indiana,  177U.  S.,  627; 
Manufacturers  Gas  and  Oil  Co.  vs.  Indiana  Natural  Gas  and 
Oil  Co.,  —  Ind.,  — ;  57  N.  E.,  912;  50  L.  R.  A.,  768. 

5.  2  Black  Com.,  240. 


State  Cannot  Prohibit  Production.  13 

ments  and  passed  from  the  colonial  governments  to  the 
various  states.1  Independent  of  any  laws,  the  common 
ownership  is  in  the  body  of  the  people;  but  the  state,  in 
the  exercise  of  its  governmental  powers,  can  exercise  its 
right  to  control  or  prohibit  the  taking  of  game,  and  the 
right  and  title  to  game  thereafter  is  in  the  state,  in  trust,_ 
for  the  benefit  of  the  people;3  and  if  a  state  denies  a  per- 
son the  right  to  take  game,  such  person  loses  nothing, 
because  he  had  no  title,  as  the  title  was  in  the  state.8 
The  state  can  give  a  person  the  exclusive  right  to  take 
the  game  and  no  person  can  complain,4  and  when  game 
is  permitted  to  be  taken,  the  actual  corporeal  possession 
alone  gives  title.5  The  state  can  prohibit  the  shipment 
of  game  from  the  state  after  taken  and  no  right  is  vio- 
lated. 6  So  it  is  with  oil  and  gas,  no  title  vests  until  they 
are  actually  reduced  into  possession  by  a  private  owner;7 
but  the  title,  to  the  oil  and  gas,  is  not  in  the  people  gen- 
erally, or  in  the  state  in  trust  for  the  people,  but  it  is  in 
the  owners  of  land  or  owners  of  oil  and  gas  leases  or 
reservations  within  the  particular  oil  and  gas  region  in 
common,  each  having  a  co-equal  right  to  reduce  the  com- 
mon property  to  possession,  and  thus  make  what  was  the 
common  property  of  all  his  individual  property. 8 

1.  Heggerty  vs.  St.  Louis  Ice  Mfg.  and  S.  Co.,  143  Mo.,  238;  40  L. 

R.  A.,  151. 

2.  Heggerty  vs.  St.  Louis  Mfg.  and  Storage  Co.,  supra:  Magner 

vs.  People,  97  111.,  320;  Ex  parte  Maier,  103  Cal.,  476; 
James  vs.  Wood,  82  Me.,  173;  8  L.  R.  A.,  448;  State  vs. 
Rodman,  58  Minn.,  393. 

3.  Ex  parte  Maier,  103  Cal..  476;  State  vs.  Rodman,  58  Minn., 

393;  Magner  vs.  People,  97  111.,  320. 

4.  Chalker  vs.   Dickinson,  1  Conn.,  382;    Organ  vs.  State,  56 

Ark.,  267. 

5.  James  vs.  Wood,  82  Me.,  173;  8  L.  R.  A.,  448  and  note. 

6.  State  vs.  Northern  Pacific  Express  Co.,  48  Minn.,  403;  Organ 

vs.  State,  56  Ark.,  267. 

7.  Ohio  Oil  Co.  vs.  State  of  Indiana,  177  U.  S.,  190;  Indiana  vs. 

Ohio  Oil  Co.,  150  Ind.,  21;  47  L.  R.  A.,  627;  Manufacturers 
Oil  and  Gas  Co.  vs.  Indiana  Natural  Gas  and  Oil  Co..  — 
Ind.,  — ;  57  N.  E.,  912;  50  L.  R.  A.,  768. 

8.  Ohio  Oil  Co.  vs.  State  of  Indiana,  177  U.  S.,  190;  Indiana  vs. 

Ohio  Oil  Co.,  150  Ind.,  21;  Manufacturers  Oil  and  Gas  Co. 
vs.  Indiana  Natural  Gas  and  Oil  Co.,  —  Ind.,  — ;  57N.  E., 
912;  50  L.  R.  A.,  768;  Townsend  vs.  State,  147  Ind.,  624; 
47  N.  E.,21;  37  L.  R.  A.,  294. 


14  Waste  of  Petroleum  and  Natural  Gas. 

SEC.  13.  RIGHT  OF  THE  STATE  TO  REGULATE  THE 
USE  TO  BE  MADE  OP  NATURAL  GAS. — A  statute  provid- 
ing- that,  "the  use  of  natural  gas  for  illuminating  pur- 
poses, in  what  are  known  as  flambeau  lights,  is  a  wasteful 
and  extravagant  use  thereof,  and  is  dangerous  to  the 
public  good,  and  it  shall  therefore  be  unlawful  for  any 
company,  corporation  or  person,  for  hire,  pay,  or  other- 
wise, to  use  natural  gas  for  illuminating  purposes  in  what 
are  known  as  flambeau  lights,"  anywhere  in  the  state, 
under  a  penalty,  upon  conviction,  of  a  fine  not  to  exceed 
twety-five  dollars  for  the  first  offense,  and  for  the  second 
offense  any  sum  not  to  exceed  two  hundred  dollars,  is 
valid;1  and  a  person  who  violates  the  statute  is  liable 
to  the  fine,  upon  conviction,  as  is  provided  by  statute.8 

SEC.  14. — WASTE  OF  OIL  AND  GAS — PROHIBITED  BY 
STATUTE — VALIDITY. — A  law  passed  by  the  legislature 
providing  "that  it  shall  be  unlawful  for  any  person,  firm, 
or  corporation  having  possession  or  control  of  any  nat- 
ural gas  or  oil  well,  whether  as  a  contractor,  owner, 
lessee,  agent,  or  manager,  to  allow  or  permit  the  flow  of 
gas  or  oil  from  any  such  well  to  escape  into  the  open  air 
without  being  confined  within  such  well,  or  proper  pipes? 
or  other  safe  receptacle  for  a  longer  period  than  two  (2) 
days  next  after  gas  and  oil  have  been  struck  in  such 
well,  and  thereafter  all  such  gas  or  oil  shall  be  safely 
and  securely  confined  in  such  well,  pipes,  or  other  safe 
and  proper  receptacles,"  is  a  valid,  constitutional  law;8 
and  a  person  who  will  violate  the  statute  is  liable  for 
the  penalties  prescribed  therein.4 

SEC.  15.  STATUTE  PREVENTING  WASTE  No  DEPRI- 
VATION OF  LIBERTY  OR  HAPPINESS.— The  statute  does 

1.  Indiana  Revised  Statute,  1894,  sec.  2316;  Acts  1891,  p.  55,  sec. 

land  sec.  2318,  Revised  Statutes,  1894;  Acts  1891,  p.  55, 
sec.  3. 

2.  Townsend  vs.   State,  147  Ind.,  624;  47  N.  E.,  21;  37  L.  R. 

A.,  2.)4. 

3.  Burns'  Revised  Statutes  Indiana,  1894,  sees.  2316, 2318, 7510, 7512, 

Acts  of  1891,  p.  55;  Acts  1893,  p.  300. 

4.  State  of  Indiana  vs.  Ohio  Oil  Co.,  150  Ind.,  21;  49  N.  E.,  809; 

47  L.  R.  A.,  627;  Ohio  Oil  Co.  vs.  Indiana,  177  U.  S.,  190. 


Law  Prohibiting  Waste  Valid.  15 

not  deprive  the  owner  of  a  gas  or  oil  well,  of  liberty  or 
the  pursuit  of  happiness  by  prohibiting  waste,  or  if  it 
does,  such  owner's  happiness  must  not  be  so  asserted  as 
to  invade  the  rights  and  happiness  of  others  and  make 
them  unhappy  by  wasting  gas  or  oil  which  oil  owners 
have  a  right  to  take  from  the  common  reservoir;  and^if 
it  makes  one  happy  by  committing  waste  and  others 
unhappy  by  its  commission;  then  the  commission  of  such 
waste  is  a  positive  wrong,  and  such  a  right  is  not 
inalienable,  and  the  state  is  charged  with  the  duty  of 
protecting  the  people  from  such  an  invasion  of  their 
rights.1 

SEC.  16.  DUE  PROCESS  OP  LAW  is  NOT  DENIED  BY 
A  STATUTE  PROHIBITING  WASTE. — Nor  does  a  statute 
prohibiting  waste  deprive  a  person  of  his  property  with- 
out due  process  of  law,  because  the  owner  of  land  which 
produces  oil  or  gas  has  no  property  rights  in  them,  while 
they  occupy  the  subterranean  cavities  of  the  earth;  since 
title  does  not  vest  until  they  are  actually  reduced  to  pos- 
session by  being  placed  in  tanks  and  pipes,  and  the  only 
right  which  is  vested  in  such  a  landowner  is  the  mere 
right  to  drill  upon  the  land  and  reduce  the  oil  and  gas  to 
possession,  so  a  person  is  deprived  of  no  title  or  estate 
by  preventing  such  person  from  using  gas  in  flambeau 
lights  or  in  a  wasteful  manner,  because  no  title  or  estate 
vests  until  actually  reduced  into  possession;  and  before 
such  title  vests,  the  state  has  a  right  to  say  what  use 
shall  be  made  of  it,  when  such  estate  or  title  does  vest, 
providing  such  restrictions  are  reasonable.2  And,  when 
an  oil  and  gas  well  produces  both  and  the  oil  cannot  be 
taken  from  the  well  without  letting  the  gas  float  away 
and  go  to  waste,  the  owner  of  the  well  must  cease  to 
operate  it,  if  the  oil  cannot  be  taken  therefrom  without 
wasting  the  gas,  since  no  title  or  estate  was  in  the  owner 
of  such  well  until  they  are  actually  reduced  to  posses- 
sion, and  the  state  has  a  right  to  regulate  the  mode  of 

1.  Townsend  vs.  State,  147  Ind.,  624;  47  N.  E.,  21;  37  L.  R. 

A.,  294. 

2.  Townsend  vs.  State,  supra. 


16  Law  Prohibiting  Waste  Impairs  no  Right. 

taking-  or  prohibit  the  taking. l  The  same  rule  applies 
to  the  owner  of  a  gas  well  who  takes  gas  therefrom  by 
means  of  a  gas  pump,  thus  increasing  the  natural  flow 
by  artificial  means  and  lessening  the  pressure  on  the  com- 
mon reservoir,  or  series  of  reservoirs,  to  the  detriment 
of  those  who  have  a  co-equal  right  to  take  gas  there- 
from, and  where  such  artificial  means  is  used  to  increase 
the  flow,  injunction  will  lie  to  prevent  it,  and  this  is  so, 
independent  of  any  statute.2 

SEC.  17.  STATUTE  PROHIBITING  WASTE  DOES  NOT 
IMPAIR  ANY  RIGHT  WHICH  A  FREE  GOVERNMENT  is 
BOUND  TO  PROTECT.  ACTS  DECLARED  BY  THE  LEGIS- 
LATURE TO  BE  WASTE  CONCLUSIVE  ON  THE  COURTS. — 
Statutes  preventing  the  waste  of  oil  or  gas  do  not  im- 
pair any  legal  right  which  a  free  government  is  bound 
to  protect,  nor  is  such  a  statute  unconstitutional  because 
it  might  be  wrong  or  unjust;3  and  when  statutes  like 
these  are  enacted,  whether  they  encroach  upon  the  nat- 
ural rights  of  a  people  of  the  state,  it  is  a  question  to  be 
determined  by  the  legislature  and  not  by  the  courts.4 
Each  state  legislature  possesses  all  the  powers  not  dele- 
gated to  the  United  States,  or  prohibited  by  the  consti- 
tution of  the  United  States,  and  those  expressly  or  by 
implication  withheld  by  the  state  constitution,  therefore 
the  courts  have  nothing  to  do  with  the  justice,  the  pro- 
priety, or  the  policy  of  such  laws,  as  long  as  they  do  not 
violate  any  of  the  provisions  of  the  constitution  of  the 
United  States,  or  laws  or  treaties  made  thereunder,  or 

1.  State  of  Indiana  vs.  Ohio  Oil  Co.,  150  Ind.,  21;  Ohio  Oil  Co. 

vs.  State  of  Indiana,  177  U.  S.,  190. 

2.  Manufacturers  Gas  and  Oil  Co.  vs.  Indiana  Gas  and  Oil  Co., 

—  Ind.,  — ;  57  N.  E.,  912;  50  L.  R.  A.,  768. 

3.  Townsend  vs.   State,  147  Ind.,  624;  Welling  vs.  Merrill,  52 

Ind.,  350;  Logansport  vs.  Seybold,  59  Ind.,  225;  State  vs. 
Gerhardt,  145  Ind.,  439;  33  L.  R.  A.,  313. 

4.  Townsend  vs.  State,  147  Ind. ,  624;  See  also,  Heddrick  vs.  State, 

101  Ind.,  564;  51  Am.  R.,  768;  Eastman  vs.  State,  109  Ind., 
278;  58  Am.  R.,  400;  Phoenix  Insurance  Co.  vs.  Burdett, 
112  Ind.,  204;  Jamieson  vs.  Indiana  Natural  Gas  &  Oil  Co., 
128  Ind.,  555;  12  L.  R.  A.,  652. 


State  May  Enjoin  Waste.  17 

the  constitution  of  the  state;  and,  though  a  person's 
natural  rights  may  be  involved,  such  an  invasion  fur- 
nishes no  ground  for  declaring  such  statutes  void,  and  the 
people  and  the  courts  must  abide  by  the  laws  enacted  by 
their  representatives.1  So  when  the  legislature  inquired 
into  the  facts  as  to  what  amounted  to  waste  of  gas  and 
oil,  it  is  conclusive  on  the  courts,  since  the  legislature 
have  a  right  to  make  such  an  investigation  and  then  en- 
act a  law  declaring  what  constitutes  waste,  and  it  is  no 
invasion  of  the  judicial  prerogatives  of  the  courts. 2 

SEC.  18.  INJUNCTIONS  BY  THE  STATE  TO  PREVENT 
WASTE. — Though  the  statute  provides  a  penalty  for  the 
violation  of  the  law  preventing  the  waste  of  gas,  and 
also  gives  certain  persons  the  right  to  go  upon  the  land, 
where  oil  and  gas  is  escaping,  from  the  well  or  wells,  in 
violation  of  law,  and  plug  up  and  tube  the  well  or  wells 
and  prevent  the  escape  of  oil  and  gas,  and  a  right  to  re- 
cover compensation  for  performing  such  work,  together 
with  costs  and  attorney's  fees,  the  state  has  a  right  to 
enjoin  the  violation  of  such  a  public  statute,  as  such 
violation  becomes  a  public  nuisance  when  its  violation 
is  done  openly,  publicly,  repeatedly,  continiously,  per- 
sistently and  intentionally;  or  when  the  party  does  it 
recklessly,  defiantly,  persistently  and  openly  and  con- 
tinuously, and  asserts  a  right  to  continue  to  do  so.3  The 
state  has  also  a  right  to  maintain  a  suit  not  only  on  the 
ground  of  irreparable  injury,  but  to  prevent  a  great 
public  injury  to  those  who  own  gas  and  oil  wells  and  to 

1.  Townsend  vs.  State,  147  Ind.,  624;  State,  Smith  vs.  McClel- 

land, 138  Ind.,  395;  Heddrick  vs.  State,  101  Ind.,  564. 

2.  Townsend  vs.  State,  147  Ind.,  624;  Gentite  vs.  State,  29  Ind., 

415;  Jameson  vs.  Indiana  Natural  Gas  and  Oil  Co.,  128 
Ind.,  555;  Mode  vs.  Beasley,  143  Ind.,  306;  Woods  vs.  Mc- 
Coy, 144  Ind.,  316;  33  L.  R.  A.,  970. 

3.  State  vs.  Ohio  Oil  Co.,  150  Ind.,  21;  Ohio  Oil  Co.  vs.  Indiana, 

177  U.  S.,  190;  Peoples  Gas  Co.  vs.  Tyner,  131  Ind.,  281; 
People  vs.  Truckee  Lumber  Co.,  116  Cal.,  397,  48  Pac.  374; 
People  vs.  St.  Louis,  10  111.,  351;  State,  etc.,  vs.  Crawford, 
28  Kan.,  726;  Crawford  vs.  Tyrrell,  128  N.  Y.,  344. 


18  Individuals  May  Enjoin  Waste. 

those  who  build  houses  and  factories  for  its  use  and  to 
the  state  which  fitted  its  state  institutions  for  its  use.1 

SEC.  19.  INJUNCTION  BY  INDIVIDUALS  TO  PREVENT 
WASTE. — Each  proprietor  has  a  right  to  reduce  natural 
gas  to  possession,  and  the  legislature  has  a  right  to  pro- 
tect the  collective  owners  of  gas  in  a  common  reservoir, 
or  series  of  reservoirs,  connected  together,  and  as  each 
of  the  common  owners  has  a  right  to  reduce  gas  to  pos- 
session, in  the  ordinary  way,  and  make  it  his  individual 
property,  so  any  act  which  amounts  to  the  commission 
of  waste  or  the  destruction  of  common  property  is  an  in- 
jury to  any  other  co-owners,  and,  independently  of  any 
statute,  the  common  owners  of  gas  in  the  common  reser- 
voir separately  or  collectively  have  a  right  to  enjoin  any 
and  all  acts  of  another  owner  which  will  naturally  injure 
or  which  will  involve  the  destruction  of  the  property  of 
the  common  fund  or  the  common  supply  of  gas. 2 

SEC.  20.  INCREASING  FLOW  OF  GAS  BY  THE  USE  OP 
EXPLOSIVES. — The  courts  of  Indiana  held,  when  the  sub- 
ject first  came  before  them,  that  the  owners  of  a  gas  well 
had  a  right  to  explode  nitro-glycerin  in  the  well  to  in- 
crease the  flow  of  the  well,  though,  in  doing  so,  the  gas 
would  be  drawn  from  the  lands  of  an  adjoining  owner 
thereby;  because  the  owner  of  the  land  had  a  right  to 
sink  a  well  on  his  own  land,  no  valid  reason  existed,  why 
the  flow  might  not  be  increased  by  enlarging  his  well  by 
artificial  means.8  The  reasoning  of  the  case  is,  that  land 
extends  to  the  center  from  the  circumference,  and  any- 
thing that  is  from  the  surface  to  the  center,  in  a  direct 
J.ne,  may  be  appropriated  by  the  owner  of  the  surface; 

1.  State  vs.  Ohio  Oil  Co.,  150  Ind.,  21;    Ohio  Oil  Co.  vs.  State, 

177U.S. 

2.  Manufacturers  Gas  and  Oil  Co.  vs.  Indiana  Gas  and  Oil  Co., 

—  Ind.,  — ;  57  N.  E.,  912;  50  L.  R.  A.,  768;  State  of 
Indiana  vs.  Ohio  Oil  Co.,  150  Ind.,  21;  Brown  vs.  Spilman, 
155  U.  S.,  665;  Jameson  vs.  Indiana  Natural  Gas  and  Oil 
Co.,  128  Ind.,  555;  Hubbard  vs.  Stock,  84  Fed.  R.,  579;  Del 
Monte  Mining  and  Milling  Co.  vs.  Last  Chance  Mining  and 
Milling  Co.,  17.  U.  S.,  60;  Ohio  Oil  Co.  vs.  Indiana,  177 
U.  S.,  190. 

3.  Peoples    Gas  Co.  vs.  Tyner,  131  Ind.,  277;  16  L.  R.  A.,  443. 


Eight  to  Use  Pump  Where  Not  Prohibited.  19 

and  the  owner  of  a  gas  well  had  the  same  rights  as  the 
owner  of  a  well  of  water,  which  is  fed  by  percolating 
waters;  and  the  owner  of  such  well  may  appropriate  all 
the  percolating  waters  to  his  own  use,  though  the  well  on 
his  neighbor's  land  is  destroyed.1  The  court  in  a  later 
case,  receded  from  the  doctrine  of  percolating  or  sub- 
terranean waters  and  said  the  difference  was  so  marked 
that  the  principles  which  the  courts  apply  to  such  waters 
are  not  applicable  to  such  a  new  and  peculiar  fluid  as 
natural  gas,  and  denied  the  right  of  the  owner  of  land  to 
increase  the  flow  by  artificial  means.2 

SEC.  21.  RIGHT  TO  USE  A  GAS  PUMP  TO  INCREASE 
THE  FLOW  OF  OIL  WHERE  No  STATUTE  PROHIBITS  ITS 
USE. — It  is  held  that  a  person  owning  and  operating  oil 
wells  has  a  right  to  use  a  gas  pump  to  increase  the  sup- 
ply of  oil  in  his  wells  though  the  use  of  such  an  artificial 
means  to  obtain  the  oil  would  decrease  the  supply  of  oil  in 
wells  on  the  lands  of  an  adjoining  or  remote  owner. 3  The 
reasoning  of  the  court  in  the  case  is,  that  the  owner  of 
the  land  was  entitled  to  its  ordinary  and  reasonable  use; 
and,  if  by  sinking  the  well,  the  owners  may  appropriate 
the  waters  which  supply  his  neighbors'  wells;  and  that 
the  user  of  the  gas  pump  had  the  exclusive  right  to  drill 
for  oil  on  his  own  land,  so  the  owner  was  at  liberty  to  use 
all  means  to  obtain  all  the  oil  and  gas  in  or  obtainable 
through  the  lands,  and  that  the  owner  may  resort  to  the 
use  of  all  known  modern  machinery  and  appliances.4 
Percolating  waters  below  the  surface  of  the  earth  are  the 

1.  Peoples  Gas  Co.  vs.  Tyner,  131  Ind.,  281;  Hanson  vs.  McCue, 

42  Cal.  303;  Wheally  vs.  Baugh,  25  Pa.,  528;  Frazier  vs. 
Brown,  12  Ohio  St.,  302;  Acton  vs.  Blundell,  12  Mees.  and 
W.,  324;  Delhi  vs.  Youmans,  50  Barb.,  316;  Hosier  vs. 
Caldwell,  7  Nev.  316. 

2.  Manufacturers  Gas  and  Oil  Co.  vs.  Indiana  Natural  Gas  and 

Oil  Co.,  —  Ind.,  — ;  57  N.  E.,  912;  50  L.  R.  A.,  767. 

3.  Jones  vs.  Forest  Oil  Co.,  194  Pa.,  379:    44  Atl.,  74;   48  L.  R. 

A.,  748. 

4.  Jones  vs.  Forest  Oil  Co.,  supra;  Westmoreland  and  Cambria 

Natural  Gas  Co.  vs.  DeWitt,  130  Pa.,  245;  18  Atl.,  725;  5  L. 
R.  A.,  732. 


20  Waste  of  Gas. 

property  of  no  one,  but  everyone  has  a  right  to  appropri- 
ate them  to  his  own  use  as  far  as  he  can,  and  the  principles 
of  natural  user  did  not  apply;  and,  if  one  has  a  right  to 
use  anything  in  nature,  the  exercise  of  that  right  to  use 
may  be  accomplished  by  all  the  skill  and  invention  of 
which  man  is  capable;  and  however  ingenious  or  artificial 
these  means  may  be,  his  right  to  appropriate  the  com- 
mon source  is  not  lessened  because  of  such  means,  as  a 
person  has  a  right  to  use  a  steam  pump  to  gain  posses- 
sion of  the  waters  beneath  the  earth,1  so  no  reason  exists 
why  such  person  may  not  use  a  gas  pump  to  get  oil, 
when  the  cost  of  such  a  pump  is  within  the  reach  of  all 
and  is  not  generally  used  only  when  the  oil  is  well  nigh 
exhausted. 2 

SEC.  22.  WASTE  OF  GAS  IN  CASE  THERE  is  No 
STATUTE  PROHIBITING  WASTE. — The  owners  of  a  tract 
of  land  bored  a  gas  well  thereon;  and,  after  the  sinking 
of  the  well,  the  amount  of  gas  flowing  from  the  well  was 
so  limited,  as  did  not  warrant  the  piping  of  the  gas,  so 
that  it  could  be  utilized  for  useful  purposes,  nor  could  a 
sale  be  made  of  the  well.  Under  these  circumstances 
the  owners  of  the  well  permitted  the  gas  to  blow  away 
through  the  air  and  thus  go  to  waste,  until  owners  of 
adjoining  tracts  of  land  who  had  productive  gas  wells 
on  their  premises,  went  to  where  the  well  was  located 
and  plugged  the  well  at  a  cost  of  $200;  and  the  owners 
of  the  well  thereafter  removed  the  plugs,  and  set  fire  to 
the  gas,  which  burned,  as  it  flowed  from  the  mouth  of 
the  open  gas  well;  and  then  the  owners  of  the  adjoining 
lands  sought  to  have  the  owners  of  the  burning  well 
enjoined  from  permitting  the  gas  to  go  to  waste,  on  this 
ground:  that,  on  account  of  the  geological  formation  in 
the  locality  of  all  the  wells,  is  such  that  the  gas-bearing 
sand-rock  underlaid  all  the  land,  and  formed  the  common 
reservoir  from  which  gas  was  obtained;  and  that,  by 
penetrating  any  tract  of  land,  all  the  land  in  the  terri- 

1.  Ballard  vs.  Tomilson,  L.  R.  29  Ch.  Dev.,  115. 

2.  Jones  vs.  Forest  Oil  Co.,  194  Pa.,  375. 


No  Right  to  Injure  Others.  21 

tory  was  subject  to  damage,  and  for  that  reason  the  flow 
of  burning"  gas  which  was  going  to  waste  irreparably 
injured  their  wells.  The  injunction  was  denied  on  the 
ground  that  it  was  sought  to  limit  the  power  of  the 
owner  of  the  gas  from  the  use  that  could  be  made  of  it. 
That  if  the  owner  of  oil  or  gas  could  sell  them,  then  his 
power  over  them  was  unlimited,  but  if  he  could  not,  he 
must  not  let  them  go  to  waste,  so  that  his  neighbor 
might  appropriate  them  and  sell  them.  The  owners' 
right  to  the  gas  coming  through  his  well  was  unlimited, 
as  is  his  right  to  the  trees  that  grow  on  his  land,  and  no 
rule  or  principle  of  equity  sustained  the  contention  of 
those  who  sought  to  have  the  owners  of  the  burning  well 
enjoined. * 

SEC.  23.  No  RIGHT  TO  DRILL  WELLS  FOR  THE  PUR- 
POSE OF  DOING  INJURY  TO  OTHERS. — A  man  has  no  right 
to  use  his  property  for  the  sole  purpose  of  injuring  others, 
as  such  a  use  is  not  one  of  the  rights  incident  to  owner- 
ship. The  right  to  property  is  not  founded  on  any  such 
a  use,  but  only  when  the  use  is  lawful  in  itself  and  the 
injury  occurs  as  an  incident  to  the  use. 2  So  a  man  has 
no  right  to  sink  a  well  on  his  own  land  for  the  sole  pur- 
pose of  destroying  the  well  of  his  neighbor;8  and  this  is 
more  especially  true  of  oil  and  gas,  because  no  man  has 
absolute  property  in  them,  but  a  mere  right  to  take  and 
make  them  his  property,  and  when  a  person  acquires 
them  they  come  perhaps  from  the  lands  of  his  neighbor 
as  well  as  his  own.4  The  lower  court  in  Hague  vs.  Wheeler 
found,  that  the  acts  of  the  parties  who  permitted  the 
gas  to  flow  through  the  air  were  malicious,  and  enjoined 
the  parties  from  permitting  it  to  continue  to  do  so  for 

1.  Hague  vs.  Wheeler,  157  Pa.,  324;  22  L.  R.  A.,  141. 

2.  Eideaut  vs.  Knox,  148  Mass.,  368. 

3.  Chelsey  vs.  King,  74  Me.,  164;  Greenleaf  vs.  Francis,  18  Pick, 

117;  Chasemore  vs.  Richards,  7  H.  L.  Cases,  388;  Flaherty 
vs.  Moran,  81  Mich.,  52. 

4.  Westmoreland  &  Cambria  Nat.  Gas  Co.  vs.  DeWitt,  130  Pa., 

235;  Jones  vs.  Forest  Oil  Co.,  194  Pa.,  379. 


22  Care  of  Abandoned  Wells. 

that  reason;1  but  the  higher  court  on  appeal  found  that 
the  sinking  of  the  well  was  done  at  the  request  of  one  of 
the  complaining-  parties  with  the  view  of  making  a  sale 
of  the  well  when  completed,  so  no  malicious  motives 
prompted  the  parties  to  sink  the  well,  but  the  court, 
though  not  deciding,  intimated  that  if  the  well  was  bored 
for  the  purpose  of  injuring  other  owners  of  wells,  an  in- 
junction would  lie.2 

SEC.  24.  ABANDONED  WELLS — PENALTIES—  RECOV- 
ERY.— The  various  states  have  passed  laws  for  the  pro- 
tection of  oil  and  gas  in  their  natural  reservoirs  from 
being  flooded  with  water  where  wells  are  abandoned, 
and  also  for  the  prevention  of  gas  to  escape  in  the  open 
air  when  such  wells  are  abandoned.  The  penalty  im- 
posed by  statute  in  such  a  case  is  not  incurred  under  the 
Ohio  statute  as  long  as  the  casing  remains  in  the  well, 
so  as  to  prevent  the  water  from  reaching  the  sand  from 
which  the  oil  is  obtained  or  its  natural  reservoir.3  The 
state  must  show  that  the  owner  of  such  a  well  has  done 
some  acts  showing  an  intention  to  abandon  such  well, 
before  the  penalty  is  incurred;4  but  the  petition  to  recover 
that  penalty  need  not  aver  that  the  casing  has  been  with- 
drawn from  the  well.5  And  where  a  resident  of  a  county 
has  a  right  to  file  a  petition  to  recover  such  penalty,  the 
petition  must  show  on  its  face  that  such  petitioner  is  a 
resident  of  the  county,  but  to  take  advantage  of  such 
defect  in  the  petition,  the  demurrer  must  be  special.  6 
Though  the  public  can  enact  statutes  preventing  the  waste 
of  gas  and  prescribe  the  mode  and  manner  of  collecting 
the  penalties  incurred,  private  owners  of  gas  lands  have 
no  rights  against  an  adjoining  owner  to  prevent  the  com- 
mission of  such  waste  under  the  Pennsylvania  decision.7 

1.  Hague  vs.  Wheeler,  22  L.  R.  A.,  142-145. 

2.  Hague  vs.  Wheeler,  157  Pa.,  324;  22  L.  R.  A.,  141. 

3.  State  vs.  Oak  Harbor  Gas  Co.,  18  Ohio  Cir.  Ct.,  751;  State, 

Gordon  vs.  Oak  Harbor  Gas  Co.,  1  Toledo  Leg.  News,  474. 
*4.  State  vs.  Oak  Harbor  Gas  Co.,  18  Ohio  C.  C.,  751. 

5.  State,  Gordon  vs.  Oak  Harbor  Gas  Co.,  53  Ohio  St.,  347;  41 

N.E.,  584. 

6.  State  vs.  Oak  Harbor  Gas  Co.,  18  Ohio  Cir.  Ct.,  751. 

7.  Hague  vs.  Wheeler,  157  Pa.  St.,  324;  22  L.  R.  A.,  141. 


Incorporeal  Hereditaments.  23 

SEC.  25.  RIGHT  TO  TAKE  OIL  AND  GAS  AS  AN  INCOR- 
POREAL HEREDITAMENT. — It  has  been  seen  that  oil  and 
natural  gas  are  treated  as  land  while  in  place,  but  no 
man  has  an  estate  or  title  to  them  while  in  the  ground, 
because  they  might  leave  him  and  become  part  of  the 
lands  of  another,  without  any  act  on  his  part  or  without 
any  act  of  the  person  to  whose  land  they  went  to  form  a 
part,  and  such  owner  has  no  possession,  of  them,  as  pos- 
session of  the  surface  gives  no  title,  estate  or  possession 
of  the  oil  and  gas  beneath  the  surface;  x  and  where  one 
is  out  of  possession  he  has  no  property  right  in  them; 2 
so  then  a  person,  though  he  may  be  the  absolute  owner 
of  the  land,  has  only  a  mere  right  to  reduce  to  possession 
the  oil  and  gas  which  he  may  find  beneath  the  surface  of 
his  land.  This  right  is  an  absolute  property  right  which 
the  owner  has  a  right  to  exercise,  and  which  no  law  can 
prevent  him  from  so  doing.3  This  right  is  an  incorporeal 
hereditament;  and  as  has  been  said,  "Corporeal  heredita- 
ments are  the  substance  which  may  be  always  seen,  al- 
ways handled;  incorporeal  hereditaments  are  but  a  sort 
of  accidents,  which  inhere  in  and  are  supported  by  that 
substance;  may  belong  or  not  belong  to  it  without  any 
visible  alteration  therein,"  so  oil  and  gas  is  a  mere  inci- 
dent to  the  ownership  of  land,  and  they  may  belong  to  or 
form  a  part  of  it  or  they  may  not.4  In  grants  and  reser- 
vations of  oil  and  gas  no  estate  passes  to  the  grantee, 
but  the  mere  right  to  the  oil  and  gas  which  may  be  found. 5 

1.  Westmoreland  &  C.  Gas  Co.  vs.  DeWitt,  supra;  Murray  vs. 

Allard,  100  Tenn.,  100;  39  L.  R.  A.,  249,  43  S.  W.,  355. 

2.  Hall  vs.Vernon,  47  W.Va.,  297;  34  S.  E.,  764;  49  L.  R.  A.,  464. 

3.  Ohio  Oil  Co.  vs.  Indiana,  177  U.  S.,  190;  Manufacturers  Gas  & 

Oil  Co.  vs.  Indiana  Natural  Gas  Co.,  Ind.;  57  N.  E.,  912; 
50  L.  R.  A.,  768. 

4.  2  Bl.  Comm.,  20. 

5.  Funk  vs.  Haldeman,  53  Pa.,  229;  Wood  County  Petroleum  Co. 

vs.  West  Virginia  Transportation  Co.,  28  W.  Va.,  210; 
Hall  vs.  Vernon,  47  W.  Va.,  297;  34  S.  E.,  746;  49  L.  R.  A., 
464;  Shepherd  vs.  McCalmont  Oil  Co.,  38  Hun.,  37. 


GAS  AND    OIL. 

PERSONAL  PROPERTY. 


CHAPTER  II. 

SECTION  1.  GAS  AND  OIL  AS  PERSONAL  PROPERTY. 
— Petroleum  is  a  mineral  forming-  part  of  the  land,  but 
when  the  petroleum  is  taken  from  the  well  and  is 
brought  to  the  surface  and  is  confined  in  pipes  or  tanks, 
the  petroleum  becomes  the  property  of  the  owner  of  the 
well  and  the  petroleum  then  for  the  first  time  became 
the  sole  and  separate  property  of  anyone.  The  separa- 
tion of  the  petroleum  from  the  balance  of  the  realty 
makes  it  personal  property.  * 

Petroleum  and  natural  gas  remain  realty  and  do  not 
change  their  character  simply  because  the  owner  of  the 
land  by  a  lease  gives  the  right  to  another  to  take  or  pro- 
duce them;  but  when  the  lessee  brings  them  to  the  sur- 
face and  separates  them  from  the  realty,  title  vests  in 
the  lessee  and  lessor  in  proportion  to  the  amount  each 
receives,  and  when  they  are  so  brought  to  the  surface 
they  become  personal  property. 2  So  when  oil  or  gas  is 
wrongfully  severed  they  become  personal  property  and 
belong  to  the  owner  of  the  inheritance. 8  Gas,  while  in 
the  land,  is  not  a  commercial  commodity,  but  when 
placed  in  pipes  and  tanks  gas  assumes  all  the  elements 
of  other  commercial  commodities,  such  as  coal,  petro- 
leum, salt,  and  other  minerals,  and  is  personal  property.  * 

1.  Kelly  vs.  Ohio  Oil  Co.,  57  Ohio,  317:  49  N.  E.,  399;  39  L.R.A. , 

765. 

2.  Carter  vs.  County  Court  of  Tyler  Co.,  43  L.  R.  A.,  725;  45  W. 

Va.,806;  32  S.  E.,  216. 

3.  Williamson  vs.  Jones,  43  W.  Va.,  562;  27  S.  E.  411;  38  L.  R.  A., 

694;  Hughes  vs.  United  Pipe  Line  Co.,  119  N.  Y.,  423. 

4.  Indiana  vs.  Indiana  &  Ohio  Gas  &  Oil  Co.,  120  Ind..  575;  6  L. 

R.  A.,  579. 


Commodities  of  Inter- State  Commerce.  25 

SEC.  2.  STATUTE  PROHIBITING  EXPORTATION  IN- 
VALID.— A  statute  providing  that  it  shall  be  unlawful 
for  any  person  or  corporation  to  drill  or  mine  for  oil  or 
gas  to  transport  to  places  outside  the  state  is  invalid 
because  it  is  an  interference  with  interstate  commerce, 
and  the  regulation  thereof  belongs  entirely  to  the  Fed- 
eral government.1  The  reasoning  of  the  case  is,  that 
natural  gas  is  as  much  an  article  of  commerce  as  coal, 
ore,  petroleum  and  the  like  commodities,  and  that 
though  gas  may  not  be  an  article  of  commerce  in  place 
below  the  surface,  yet  when  natural  gas  reaches  the  sur- 
face and  is  placed  in  pipes  or  tanks,  the  rules  apply  to 
gas  as  to  other  commercial  commodities  and  anything 
that  is  sold  in  the  markets  of  the  country  thereby 
becomes  a  commercial  commodity.2  And  even  though 
there  is  a  point  when  such  articles  as  gas  are  not  a  com- 
mercial commodity,  yet  when  they  assume  such  a  stage 
that  they  are  bought  and  sold  as  any  commercial  com- 
modity and  are  fit  for  transportation,  then  the  law  appli- 
cable to  interstate  commerce  applies,  and  a  law  which 
prohibits  transportation  from  out  of  the  state  is  void. 8 

SEC.  3.  POLICE  POWER  OVER  TRANSPORTATION. — 
A  statute  prohibiting  the  exportation  of  natural  gas  is 
not  a  valid  exercise  of  the  police  power  of  the  state, 
where  it  does  not  in  any  way  provide  for  the  safety  or 
health  of  the  people  or  their  comfort;  but  the  sole  aim 
is  to  prevent  the  acquisition  of  gas  for  the  purpose  of 
transportation  and  it  is  not  the  mode  of  procuring  nat- 
ural gas  or  the  mode  of  transporting  which  the  statute 
prohibited,  but  the  prohibition  is  directed  against  the 
persons  engaged  in  procuring  and  transporting  the  com- 

1.  State  ex  rel.  Corwin  vs.  Indiana  &  Ohio  Oil  &  Gas  Co.,  120, 

Ind.,575;6L.  R.  A.,579. 

2.  Citizens  Gas  &  Mining  Co. vs.  Elwood,  114  Ind.,  332;  Carothers 

vs.  Philadelphia  Co.,  118  Pa.,  488;  Columbia  Conduit  Co. 
vs.  Com.  90  Pa.,  307;  West  Virginia  Transpt.  Co.  vs.  Vol- 
canic Oil  &  Coal  Co.,  5  W.  Va.,  382. 

3.  Coe  vs.  Errol,116U.  S.,517;  State  ex  rel.  Corwin  vs.  Indiana 

&  Ohio  Gas  &  Min.  Co.,  120  Ind.,  575. 


26  Police  Power. 

modity;  so  such  an  act  cannot  be  taken  out  of  the  inhibi- 
tion against  interference  with  interstate  commerce, 
because  such  a  law  is  not  founded  on  the  right  of  the 
state  to  exercise  its  police  power  for  the  safety,  health, 
and  comfort  of  the  people,  but  is  simply  a  prohibition 
from  transporting  a  commodity.1 

SEC.  4.  POLICE  POWER.  VALID  REGULATION- 
VESTED  RIGHTS. — The  state  has  a  right  to  pass  a  law 
regulating  the  pressure  of  natural  gas  conveyed  through 
pipes  to  the  place  of  consumption  and  such  a  regulation 
is  nothing  more  than  the  exercise  of  the  local  police 
power  of  the  state  and  is  not  an  interference  with  inter- 
state commerce.2  The  right  is  grounded  on  the  fact  that 
natural  gas  is  inflammable,  explosive,  and  a  highly  dan. 
gerous  commodity,  and  is  of  an  extraordinary  species 
and  nature,  all  of  which  is  a  matter  of  common  knowl- 
edge and  of  which  the  courts  will  take  judicial  notice.3 
Safety,  health  and  comfort  to  the  public  is  of  a  higher 
consideration  than  mere  private  rights,  to  which  the  lat- 
ter must  always  yield.  The  owner  of  property  which  is 
so  dangerous  as  to  require  regulations  has  no  rights 
thereto^superior  to  the  police  power  and  against  such  a 
power  there  is  no  vested  right;  and,  though  a  person 
invests  ^money  in  constructing  a  pipe  line,  when  there 
was  no  law  limiting  the  amount  of  pressure  of  gas,  and 
gas  will  not  flow  at  the  maximum  pressure  fixed  by  the 
statute,  yet  such  a  person  must  yield  to  the  police  power 
of  the  state. 4 

1.  State,  Corwin  vs.  Indiana  &  Ohio  Gas  &  Oil  Mining  Co.,  120 

Ind.,  575;  6  L.R.A.,  579;  Minnesota  vs.  Barber,  136  U.  S., 
313. 

2.  Jamieson  vs.  Indiana  Nat.  Gas  &  Oil  Co.,  128  Ind.,  555. 

3.  Lanigan  vs.  New  York  Gas  Light  Co.,  71  N.  Y.,  29:  St.  Louis 

vs.  Fuchs,  133  Mo.,  168;  Wood  vs.  Northwestern  Ins.  Co.,  46 
N.  Y.,  421;  Com.  vs.  Peckham,  2  Gray,  514;  Schlicht  vs. 
State,  56  Ind.,  173;  Freeze  vs.  State,  23  Fla.,  267;  State  vs. 
Hayes,  78  Mo.,  308;  Lohman  vs.  State,  81  Ind.,  15. 

4.  Jamieson  vs.  Indiana  Nat.  Gas  &  Oil  Co.,  128  Ind.,  555;  Bos- 

ton Beer  Co.  vs.  Massachusetts,  97  U.  S.,  32;  Stone  vs. 
Mississippi,  101  U.  S.,  814;  New  Orleans  Gas  Light  Co.  vs. 
La.  L.  &.  H.  P.  &  Mfc.  Co.,  115  U.  S.,  650-72;  Northwest- 
ern Fertilizer  Co.  vs.  Hyde  Park,  97  U.  S.,  659. 


Regulation  of  Pressure.  27 

SEC.  5.  REGULATING  PRESSURE  WITHIN  THE  STATE 
ON  GAS  SHIPPED  OUTSIDE  THE  STATE  is  NOT  AN  INTER- 
FERENCE WITH  INTERSTATE  COMMERCE. — The  production 
of  natural  gas  is  strictly  a  local  occupation,  because  it 
is  confined  to  a  very  limited  territory  and  is  a  question  to 
be  dealt  with  alone  by  the  legislature  of  the  state.  The 
pipes  for  its  transportation  must  pass  along  the  streets 
and  highways  or  through  the  private  lands  of  others; 
and  the  persons  and  property  exposed  to  danger  are 
those  of  the  state  where  the  pipes  are  laid.  When  a  gas 
company  lays  its  pipes  it  must  get  permission  from  the 
cities  and  towns  to  lay  them  on  the  streets,  and  from 
the  highway  overseers,  when  on  the  public  highway,  and 
must  come  to  the  local  legislature  to  get  permission  to 
condemn  the  lands  of  a  private  owner  to  lay  its  pipe 
lines.  The  right  to  regulate  local  affairs  is  strictly 
within  the  power  of  the  various  states;  and  the  exercise 
of  these  rights  inheres  in  every  state  and  is  but  the  call- 
ing into  action  of  the  police  power  of  the  state,  and  such 
laws  are  not  void  though  they  indirectly  affect  inter- 
state commerce.1 

SEC.  6.  REGULATIONS  OF  SALE,  TRANSPORTATION 
AND  STORAGE  OF  OIL  AND  GAS  AND  ALSO  THE  PRODUC- 
TION.— Natural  Gas  and  Petroleum  are  inflammable  and 
highly  explosive  agencies  and  they  are  dangerous  alike 
to  life,  health  and  property,  and  courts  will  take  judicial 
notice  of  their  dangerous  characteristics  as  they  are  of 
such  common  knowledge  as  pertain  to  experience  and 
affairs  of  almost  every  man's  daily  life.2  The  national 
government  recognized  the  dangers  of  coal  oil  at  a  very 
early  day  and  enacted  a  law  imposing  a  penalty  upon 

1.  Jamieson  vs.  Indiana  Natural  Gas  &  Oil  Co.,  128  Ind.,  555; 

Munn  vs.  Illinois,  94  U.  S.,  135;  Cooleyvs.  Wardens  of  the 
Port  of  Philadelphia,  53  U.  S.,  299;  Sherlock  vs.  Ailing,  93 
U.  S.,  99;  Mobile  Co.  vs.  Kimball,  102  U.  S.,  691;  Morgans 
\  L.  &  T.  R.  &  S.  Co.  vs.  Louisiana,  118 U.  S.,  464;  Ohio  Oil 
Co.  vs.  Indiana,  177  U.  S.,  190. 

2.  State  vs.  Hayes,  78  Mo.,  307;  Brown  vs.  Piper,  91  U.  S.,  37; 

Fuchs  vs.  St.  Louis,  133  Mo.,  168;  34  L.  R.  A.,  118.  Under- 
zook's  case,  76  Pa.,  340;  Jones  vs.  United  States,  137  U.  S., 
202. 


28  Transportation  Regulations. 

anyone  who  offered  for  sale  oil  below  a  certain  specific 
gravity  and  the  same  power  is  vested  in  the  state.1 
Many  of  the  states,  if  not  all,  have  passed  laws  similar 
to  those  of  the  national  government  requiring  petroleum 
which  is  offered  for  sale  to  be  inspected  and  prohibiting 
its  sale  if  it  did  not  come  up  to  the  requirements  of  the 
statute,  and  such  laws  have  been  upheld  by  the  Federal 
Supreme  Court,  as  they  are  made  for  the  protection  of 
the  lives,  health  and  the  property  of  the  community,  and 
are  to  be  first  considered  as  against  any  right  exercised 
by  a  citizen  which  may  be  injurious;2  and  the  regulation 
of  the  pressure  of  gas  is  no  more  than  a  police  regulation 
and  is  not  per  se  a  regulation  of  commerce,  as  the  pipes 
for  the  conveyance  of  oil  and  gas  are  local  vehicles,  con- 
veying1 dangerous  products,  and  the  pressure  is  a  power 
locally  employed.  The  right  of  the  state  to  regulate 
such  local  instrumentalities  is  a  doctrine  well  settled  by 
the  courts. 3  A  city  which  has  the  power  to  enact  laws 
coming  within  the  police  powers  of  the  state  has  the 
power  to  regulate  the  storage  of  petroleum  and  its  prod- 
ucts within  the  limits  of  the  city,4  but  when  the  city  pos- 
sesses an  ordinance  regulating  the  storage  of  petroleum, 
the  council  must  pass  an  ordinance  prescribing  the  rules 
which  shall  regulate  storage  of  petroleum,  so  that  the 
regulation  will  apply  to  all  persons  alike,  and  when  the 
city  council  reserves  the  right  to  grant  or  refuse  the 
permit,  the  ordinance  is  void.5  A  city  may  also  pass  an 
ordinance  prescribing  the  conditions  by  which  an  oil 
well  may  be  drilled  within  a  city  or  may  prohibit  the 

1.  United  States  vs.  DeWitt,  76  U.  S.,  41. 

2.  Patterson  vs.  Kentucky,  97  U.  S.,  501. 

8.  United  States  vs.  DeWitt,  76  U.S.,  41;  Patterson  vs.  Kentucky, 
97  U.  S.,  501;  Ohio  Oil  Co.  vs.  Indiana,  177  U.  S.,  190;  Gib- 
bons vs.  Ogden,  22  U.  S.,  1;  Smith  vs.  Alabama,  124  U.  S., 
465;  Webber  vs.  Virginia,  103  U.  S.,  348;  Turner  vs.  Mary- 
land, 107  U.  S.,  38. 

4.  Waters  Pierce  Oil  Co.  vs.  New  Iberia,  47  La.  Ann.,  863. 

5.  Richmond  vs.  Dudley,  129  Ind.,  112;  28  N.  E.,  312;  13  L.R.A., 

587. 


Trusts  and  Combines.  29 

drilling1  of  such  a  well;1  and  may  prohibit  the   sale  of 
petroleum  which  has  not  been  inspected. 2 

SEC.  7.  POLICE  POWER  OF  THE  STATE  TO  REGULATE 
TRUSTS  AND  COMBINATIONS.  FOREIGN  CORPORATIONS 
ENGAGED  IN  THE  SALE  OF  OIL. — No  foreign  corporation 
has  a  right  to  engage  in  business  in  a  state  without  the- 
consent  of  the  state  and  can  do  no  business  in  a  foreign 
state  without  its  consent  except  that  which  comes  within 
the  protection  of  the  inter-state  commerce  clause  of  the 
United  States  constitution.3  So  a  foreign  corporation 
cannot  evade  the  anti- trust  laws  of  a  state  and  shield 
itself  behind  the  laws  of  the  state  where  it  was  incorpo- 
rated, since  the  permit  given  to  do  business  may  be  re- 
voked, as  such  permit  is  subject  to  the  police  power  of 
the  state.  It  is  for  the  state  to  say  how  a  particular 
business  shall  be  carried  on,  and  when  the  legislature 
has  declared  that  a  certain  business  or  the  dealing  in 
commodities  is  one  which  concerns  the  public  welfare 
and  that  any  combination  of  ^corporations  which  have  a 
tendency  to  control  the  product  and  their  prices  is  in 
violation  of  law,  the  imposition  of  a  penalty  of  forfeiture 
is  but  a  valid  exercise  of  the  police  power.  There  can 
not,  however,  be  an  absolute  judgment  of  forfeiture  in 
such  case  but  the  court  must  limit  its  judgment  to  trans- 
actions which  are  local  in  their  nature,  so  as  not  to  in- 
terfere with  the  commerce  of  the  foreign  corporation 
which  is  protected  by  the  commerce  clause  of  the  Fed- 
eral Constitution.4 

1.  Agenew  vs.  Washington,  7  Pa.  Co.  Ct.,  780. 

2.  State  vs.  Finch,  37  Minn.,  433;  State  vs.  Baggott,  96  Mo.,  63;  8 

S.  W.,737. 

3.  Waters  Pierce  Oil  Co.  vs.  State  of  Texas,  177  U.  S.,  28;  Same 

vs.  Same,  19  Tex.  Civ.  App.,  1-44,  S.  W.,  936. 

4.  Waters  Pierce  Oil  Co.  vs.  State  of  Texas,  177  U.  S.,  28. 


PARTNERSHIPS. 

IN   THE   PRODUCTION   OP   OIL  AND   GAS. 


CHAPTER  III. 

SECTION  1.  MINING  PARTNERSHIPS;  How  CREATED — 
WHAT  CONSTITUTES. — When  tenants  in  common  or  joint 
tenants  who  may  own  or  possess  by  lease  or  otherwise, 
lands,  unite  and  operate  the  land,  together,  for  the  pur- 
pose of  the  production  of  minerals,  the  persons  so  en- 
gaged constitute  a  partnership.1  In  law  the  owners  of 
such  mining  properties  hold  their  property  as  joint  ten- 
ant or  tenants  in  common.2  No  express  agreement  is  nec- 
essary to  constitute  a  mining  partnership  and  it  is  suffi- 
cient when  they  are  jointly  conducting  a  mining  venture;3 
or  when  two  joint  tenants  operate  together  no  express 
agreement  is  necessary,  as  their  acts  and  doings  will  cre- 
ate a  partnership  by  operation  of  law.4  A  mining  part- 
nership exists  when  prior  to  the  acquisition  of  a  lease  and 
at  the  time  the  enterprise  was  started,  the  parties  under- 
took to  acquire  a  lease,  and  agreed  to  develop  the  mine  and 
extract  the  ores  from  the  land  and  to  pay  the  expenses 
and  share  the  profits;8  so  when  the  owners  of  unequal 
interest  in  lands  agreed  that  the  lands  should  be  devel- 
oped for  mining  purposes  and  that  each  should  contrib- 
ute in  proportion  to  his  interests  and  each  should  bear 

1.  Jeffreys  vs.  Smith,  1  Jac.  &  W.,  298;  Bybee  vs.  Hawkett,  12 

Fed.  Rept.,  649;  Skillman  vs.  Lochman,  23  Cal.,  198; 
Adams  vs.  Briggs  Iron  Co.,  7  Cush.,  351;  Graham  vs. 
Pierce,  19  Gratt.,  28;  Babcok  vs.  Stewert,  58  Pa.,  179. 

2.  Reed  vs.  Meagher,  14  Colo.,  335;  9  L.  R.  A.,  461. 

3.  Snyder  vs.  Burnham,  77  Mo.,  52. 

4.  Freeman    vs.   Hemenway,  75    Mo.  App.,  611;    Decker    vs. 

Howell,  42  Cal.,  636. 

5.  Reed  vs.  Meagher,  14  Colo.,  335. 


Mining  Partnerships.  31 

the  losses  in  the  same  proportion  as  well  as  each  should 
share  the  profits  in  a  like  proportion,  it  is  a  mining  part- 
nership. *  The  principles  of  partnership  law  apply  to 
the  owners  while  they  are  engaged  in  the  production  of 
minerals  from  the  mines,  for  the  protection  of  the  rights 
and  interests  of  the  parties  themselves  as  well  as  third. 
persons.2  The  rules  applicable  to  ordinary  mining  part- 
nerships apply  to  tenants  in  common  or  joint  tenants  of 
an  oil  or  gas  lease  actually  engaged  in  the  production  of 
the  same  under  an  agreement  that  each  is  to  share  in  the 
profits  and  losses  in  proportion  to  the  interest  of  each; 
and  the  persons  so  associated  will  be. regarded  as  con- 
stituting mining  partnership.8  A  mining  partnership  is 
not  created  by  taking  a  mortgage  on  the  mining  tools 
and  the  mine  for  a  debt  then  due,  where  possession  was 
to  continue  in  the  mortgagor,  and  at  the  time  of  each 
"clean  up"  the  proceeds  were  to  be  turned  over  to  the 
mortgagee  to  be  applied  in  paying  the  running  expenses 
of  the  mine  and  the  mortgage  debt.4  And  when  two 
have  interests  in  a  mine  and  one  only  develops  and  oper- 
ates it,  no  partnership  exists;5  but  when  the  owner  of 
a  mining  right  contracts  with  the  owner  of  a  mill  for  the 
reduction  of  ores  that  a  certain  part  of  the  mineral  should 
vest  in  the  owner  of  the  mill  and  both  should  and  each 
would  bear  a  certain  portion  of  the  expenses  of  mining, 
shipping  and  milling,  and  the  profits  to  be  shared  also, 
the  agreement  amounts  to  a  partnership;6  but  under  a 
similar  state  of  facts  where  the  owners  of  a  mine  and  the 
person  who  operated  it  agree  that  the  ore  extracted 
should  be  milled  at  a  place  owned  by  a  part  owner  of 
the  mine,  and,  after  paying  for  the  mining  and  milling, 
the  proceeds  should  be  divided,  creates  a  tenancy  in 

1.  Childers  vs.  Neely,  49  L.  R.  A.,  468. 

2.  Reed  vs.  Meagher,  14  Colo.,  335. 

3.  Childers  vs.  Neely,  —  W.  Va.,  — :  34  S.  E.,  828;  48  L.R.A., 

468. 

4.  Shungkee  vs.  Davidson,  102  Cal.,  188,  36  Pac.,  519. 

5.  Anaconda  Cap.    Min.  Co.  vs.  Butte,  B.  Min.  Co.,  17  Mont., 

519-43  Pac.,  924. 

6.  Ashenfelter  vs.  Williams,  7  Colo.  App.,  332;  43  Pac.,  664. 


32  What  Constitutes  a  Partnership. 

common  and  not  a  partnership;1  and  where  four  persons 
are  jointly  interested  in  the  operation  of  a  mine,  three  of 
whom  furnish  the  money  and  one  his  services,  all  to  share 
in  the  profits,  the  relationship  is  a  mining  partnership.  8 

SEC.  2.  JOINT  OPERATION,  OR  SHARING  IN  THE  EX- 
PENSE, OR  PROFITS,  OR  WHEN  THEY  ARE  JOINT  TENANTS, 
OR  TENANTS  IN  COMMON,  WILL  NOT  ALWAYS  CREATE  A 
PARTNERSHIP. — Where  tenants  in  common  were  the  own- 
ers of  oil  rights,  and  they  entered  into  an  agreement  to 
sink  oil  wells,  and  that  each  was  to  bear  his  proportion 
of  the  expenses  and  receive  a  share  of  the  profits,  ac- 
cording to  the  interest  of  each,  they  have  not  changed 
their  relation  as  tenants  in  common  and  the  agreement 
created  no  partnership.8  The  owners  of  a  leasehold 
estate  do  not  change  their  relation,  when  they  had, 
on  the  leased  premises,  an  oil  well  and  machinery,  and 
they  agree  to  sink  another  well  on  the  leased  lands,  and 
each  was  to  contribute  his  share  of  the  cost  and  receive 
his  share  of  the  product  although  each  may  have  to  con- 
tribute to  losses  sustained  if  the  product  does  not  exceed 
the  cost  as  the  gains  and  losses  of  each  one  must  be 
paid  by  each  individual  and  one  tenant  is  not  bound  to 
make  up  any  deficiency  of  his  co-tenants.4  So  when  ten- 
ants in  common  agree  that  one  of  them  should  sink  a  well 
and  furnish  all  the  tools,  and  machinery,  for  so  doing, 
and  that  each  of  the  others  would  bear  his  share  of  the 
expenses  in  proportion  to  his  interest  in  the  premises 
demised  and  that  the  oil  produced  should  be  placed  in 
pipe  lines  and  each  should  receive  a  share  equal  to  his 
interests  in  the  land,  does  not  create  a  partnership  and 
the  co-tenants  are  not  liable  for  the  purchase  price  of 
appliances  bought  by  the  first  tenant. 5  The  rule  prevail- 
ing in  Pennsylvania  is  that  the  instrument  of  convey- 
ance is  the  foundation  of  the  rights  of  the  parties;  and, 

1.  Vietti  vs.  Nesbett,  22  Nev.,  390;  41  Pac.,  151. 

2.  Lyman  vs.  Schwartz,  13  Colo.  App.,  318;  57  Pac.,  735. 

3.  Butler  Saving  Bank  vs.  Osborne,  159  Pa.,  10;  28  AtL,  163. 

4.  Dunham  vs.  Loverock,  158  Pa.,  197. 

5.  Taylor  vs.  Freid,  161  Pa.,  53;  28  Atl.,  993. 


Differ  from  Commercial  Partnerships.  33 

if  a  deed  or  a  lease  shows  on  its  face,  that  the  convey- 
ance was  to  them  as  tenants  in  common  it  is  not  within 
the  power  of  any  one  to  establish  by  parole  evidence 
that  the  land  is  held  otherwise  or  that  it  was  brought 
into  a  partnership  by  a  parole  agreement.1  The  rules, 
in  that  state,  as  to  the  bringing  in  of  land  into  the  part^ 
nership,  is  more  strict  than  in  most  of  the  states,  where 
the  interest  is  a  mere  chattel  real,  such  as  an  oil  lease, 
and  is  held  in  the  individual  names  of  the  partners,  yet 
it  may  become  partnership  property  in  Pennsylvania 
and  assets  when  such  property  is  so  treated  by  the  part- 
ners.8 And  a  partnership  may  exist  as  to  mining, 
although  the  land  is  held  as  tenants  in  common.3 

SEC.  3.  THERE  is  A  DIFFERENCE  IN  MANY  RESPECTS 
BETWEEN  A  TRADING  OR  COMMERCIAL  PARTNERSHIP  AND 
A  MINING  PARTNERSHIP.  In  trading  partnerships  death 
will  ordinarily  cause  a  dissolution  of  the  partnership; 
and  no  transfer  can  be  made  without  the  consent  of  all 
of  the  partners  by  which  the  transferee  may  become  a 
partner  of  the  remaining  members;  while  in  a  mining 
partnership,  neither  death,  insanity,  imprisonment, 
bankruptcy  or  sale  will  dissolve  a  partnership.4  Mining 
partnerships  are  distinct  associations  with  different 
rights  and  liabilities  attaching  to  their  members  than 
pertain  to  ordinary  partnership,  and  they  exist  in  all 
mining  communities.  Indeed,  without  them,  successful 
mining  would  be  attended  with  difficulties  and  embar- 
rassments much  greater  than  at  present. 5  So  when  ten- 

1.  McCormick's  App.,  57  Pa.,  54;  98  Am.  Dec.,  91;Geddes'  App., 

84  Pa.,  482;  Roberts'  App.,  70  Pa.,  79;Lefever's  App.,  69 
Pa.,  122. 

2.  Brown  vs.  Beecher,  120  Pa.,  590;  15  Atl.,  608. 

3.  Patrick  vs.  Weston,  22  Colo.  45-43  P.,  446. 

4.  Thomas  vs.  Hurst,  73  Fed.,  372:  Eeed  vs.  Meagher,  14  Colo., 

335;  25  Pac.,681;  Slater  vs.  Haas,  16  Colo., 574;  25  Pac., 
1080;  Skillman  vs.  Lochman,  23  Cal.,  198;  McConnell  vs. 
Denver,  35  Cal.,  365;  Higgins  vs.  Armstrong,  9  Colo.,  38; 
Fereday  vs.  Nightwick,  1  Russ.  &  M.,45;  See  Freeman  vs. 
Hemenway,  75  Mo.  App.,  611. 

5.  Kahn  vs.  Central  Smelting  Co.,  102  U.  S.,  641. 


34  No  Selection  of  Members. 

ants  in  common  agree  to  operate  a  mine,  such  tenants 
thereby  do  not  lose  their  individual  right  to  sell  and  dis- 
pose of  their  property,  but  remain  as  any  ordinary  tenants 
in  common,  and  each  co-owner  may  sell  or  buy  from  each 
other,1  and  may  purchase  a  partner's  interest  at  a  public 
sale.*  But  when  the  sale  is  made  under  a  trust  deed 
and  the  partner's  interest  is  bought  in  by  a  third  person} 
with  funds  taken  from  the  partnership,  and  is  bought 
for  the  partner,  and  then  a  transfer  is  made  to  such 
partner  by  the  third  person,  the  title  of  the  former  part- 
ner is  not  divested. 8 

SEC.  4.  No  SELECTION  OF  PARTNERS — PARTNER 
HAS  No  POWER  TO  BIND  A  PARTNER. — In  a  mining 
partnership,  unlike  ordinary  trading  partnership,  the 
partners  have  a  right  to  sell  and  dispose  of  their  interest 
to  whom  they  see  fit;  and,  when  there  is  a  disposition  by 
sale  or  otherwise,  the  person  who  purchases  the  interest 
acquires  all  the  rights  of  the  former  owner  to  participate 
in  the  partnership  business;  so,  from  the  nature  of  the 
personalty  of  a  mining  partnership,  the  partners  have 
no  selection  of  the  members  of  the  partnership,  conse- 
quently one  partner  has  no  implied  power  to  bind  his 
co-partner  by  pledging  his  credit,  by  borrowing  money 
on  notes,  or  mortgages,  or  drawing  bills  of  exchange, 4 
and  one  co-owner  cannot  bind  the  other  to  pay  for  the 
development  of  a  mine  to  which  they  did  not  consent. 5 

SEC.  5.  A  PARTNERSHIP  FOR  THE  DEVELOPMENT 
OF  PETROLEUM  is  A  MINING  PARTNERSHIP.  ONE  PART- 
NER CANNOT  BIND  His  CO-PARTNER.  In  the  formation 

1.  First  Nat.  Bank  vs.  Bissell,  2  McCrary,  73;  Kahn  vs.  Central 

Smelting  Co.,  102 U.  S.,  641;  Bissell  vs.  Foss,  114  U.S.,  252. 

2.  Bradbury  vs.  Barnes,  19  Cal.,  120. 

3.  Brown  vs.  Bryan,  51  Pac.,  995. 

»  4.  Skilman  vs.  Lachman,  23  Cal.,  198;  Jones  vs.  Clark,  42  Cal., 

180;  Reed  vs.  Meagher,  14  Colo.,  335. 

5.  Chase  vs.  Savage  Silver  Min.  Co.,  2  Nev.,  9;  See  also  Fereday 
vs.  Nightwick,  1  Russ.  &  Co.,  45;  Williams  vs.  Athenbor- 
ough,  1  Turn.  &  R.,  70;  Charles  vs.  Eshleman,5  Colo,,  107; 
Lamar  vs.  Hale,  79  Va.,  147. 


No  Power  to  Bind  Partners.  35 

of  ordinary  partnerships  the  partner  has  a  right  to  make 
a  choice  of  the  persons  who  shall  constitute  the  part- 
nership, but  in  oil  and  gas  ventures,  as  in  all  mining 
ventures,  the  partners  can  have  no  choice;  and,  when  a 
person  buys  another  person's  interest,  the  partnership 
is  not  dissolved  but  continues.  The  purchaser  takes  the 
place  of  the  retiring  partner  and  cannot  be  excluded. 

The  partners  in  an  oil  and  gas  venture  can  have  no 
choice  as  to  the  members  of  the  partnership,  so  the 
authority  of  one  member  to  bind  the  other  pecuniarily  is 
limited;  and,  without  authority,  a  partner  cannot  borrow 
money,  or  execute  notes,  or  accept  bills  of  exchange, 
nor  can  a  general  superintendent  or  manager  do  so. 
They  can  bind  the  partners  only  in  things  that  are  nee. 
essary  in  the  transaction  of  the  particular  business  and 
which  are  usual  and  customary  in  such  business.1  A 
mining  partnership  is  a  non -trading  partnership,  which 
does  not  confer  authority  by  implication  to  bind  the 
firm.*  And  in  the  absence  of  evidence  that  money  was 
ever  borrowed  for  the  firm  to  the  knowledge  of  otherSj 
or  that  it  was  customary  for  such  partner  to  do  so,  the 
mere  fact  that  the  money  was  borrowed  in  the  ordinary 
course  of  business  is  not  sufficient,3  but  when  the  person 
managing  the  mine  incurs  expenses,  the  manager  may 
pay  them  out  of  the  proceeds  of  the  mine.4  So  when 
several  parties  agree  in  writing  to  sink  a  gas  well;  and 
the  persons  who  signed  the  agreement  were  to  pay  a 
certain  sum  which  was  stated  in  the  agreement,  and  one 
of  the  persons  who  signed  the  agreement  was  authorized 

1.  Childers  vs.  Neeley,  —  W.  Va.,  — ;  34  S.  E.  828;  49  L.R.A., 

468;  See  also  Waldron  vs.  Hughes,  44  W.Va.,  126;  29  S.E., 
505;  Connell  vs.  Denver,  35  Cal.,  368;  Judge  vs.  Braswell, 
13  Bush.,  67;  Congdon  vs.  Olds,  18 Mont.,  487;  46  Pac.,  261. 

2.  Childers  vs.  Neeley,  —  W.  Va.  —  ;  34  S.  E.  828;     See  also 

Pease  vs.  Cole,  53  Conn.,  55;  22  Atl.,  681;  Deordorf  vs. 
Tacher,78  Mo.,  128;  Pooley  vs.  Whitmore,  10  Heisk,  629; 
Patrick  vs.  Weston,  22  Colo.,  45;  Randall  vs.  Meredith,  76 
Tex.  669;  13  S.  W.,  576. 

3.  Randall  vs.  Meredith,  76  Tex.,  669;  13  S.  W.,  576. 

4.  Roberts  vs.  Ebenhart,  1  Kay,  148. 


36  Power  of  Members. 

by  the  others  to  let  a  contract  to  sink  a  well,  which  was 
done,  but  when  the  funds  were  exhausted  and  no  gas 
was  found  at  the  depth  the  well  was  sunk,  some  of  the 
members  increased  their  subscriptions  and  the  well  was 
sunk  deeper,  the  other  members  who  did  not  increase 
their  subscriptions  were  held  not  liable  beyond  their 
subscriptions. l 

SEC.  6.  MINING  PARTNERSHIP — MEMBERS  HOLDING 
THE  MAJOR  PORTION  OF  PROPERTY  CONTROL. — In  a  min- 
ing partnership  the  members  who  hold  a  major  portion 
of  the  property  have  the  power  to  control  the  policy  of 
the  partnership;  and,  when  disputes  and  dissensions 
arise  among  the  members  of  the  partnership,  and  it  is 
necessary  to  carry  on  the  business  and  incur  expenses, 
such  members  may  incur  the  necessary  expenses  for  so 
doing,  if  such  is  necessary  for  the  benefit  of  all  the  mem- 
bers concerned. 2  So  when  three  persons  were  members  of 
a  partnership  for  the  development  of  oil  and  the  two  who 
had  a  major  portion  of  the  property,  put  on  repairs  on  a 
boiler  used  in  connection  with  the  partnership,  on  a  dis- 
solution of  the  partnership  such  necessary  repairs  were 
proper  charges  against  the  property  of  the  partnership 
on  an  accounting.8  But  when  such  major  owners  of  the 
partnership  property  use  the  property  to  develop  a 
business  which  has  no  connection  with  the  partnership, 
and  the  expenses  for  repairs  were  on  account  of  the 
property  being  so  used,  the  partners  cannot  expect  the 
other  partner  to  bear  any  part  of  such  expenses  because 
it  was  a  wrongful  diversion  of  the  partnership  property 
to  a  business  foreign  to  the  partnership.4 

1.  Clark  vs.  Rumsey,  59  App.  Div.,  435,  Rev.  52  N.  Y.  S.  R.  417. 

2.  Childers  vs.  Neeley,  —  W.  Va.,   —  ;   34  S.B.,  828;  49  L.R.A., 

468;  Daugherty  vs.  Creary,  30  Cal.,  290;  89  Am.  Dec.,  116; 
Nolan  vs.  Lovelock,  1  Mont.,  224. 

3.  Childers  vs.   Neeley,  —   W.  Va.,    —  ;     34  S.   E.,  828;    49 

L.  R.  A.  468. 

4.  Childers  vs.  Neeley,  —  W.  Va.,  — ;   34  S.  E.,  828;  .17  Am.  & 

Eng.  Enc.  Law,  p.  1217;  1  Collyer  Part.  Sect.,  312;  Story 
Part.  Sect.,  169;  T.  Parson  Part.,  169. 


Diversion  of  Property.  37 

SEC.  7.  DIVERSION  OF  PARTNERSHIP  PROPERTY- 
LOSS. — A  partner  is  entitled  to  compensation  for  a  loss 
caused  to  him  by  the  diversion  of  the  partnership  prop- 
erty in  promoting1  the  business  of  other  partners.  So 
when  two  of  the  partnership  in  the  production  of  petro- 
leum, use  a  boiler  in  a  business  which  is  foreign  to  the 
partnership  business,  and  the  production  of  the  part- 
nership wells  was  thereby  decreased,  the  partner  who 
had  no  interest  in  the  enterprise  outside  the  partnership 
is  entitled  to  compensation  from  the  other  partners  for 
all  the  losses  caused  by  the  wrongful  diversion  of  the 
partnership  property.1  And  when  funds  of  a  firm  are 
diverted  to  the  payment  of  debts  contracted  before  he 
became  a  member  and  for  which  the  old  members  were 
jointly  and  severally  liable  and  for  which  the  new  mem- 
ber was  not  liable  because  the  debts  were  contracted 
before  the  new  member  entered  the  firm,  such  partners 
must  account  to  the  incoming"  partner. 2 

SEC.  8.  PARTNERSHIP  LIENS.  Parties  eng^ag^ed  in 
the  production  of  oil  and  g-as  as  partners  have  a  lien  on 
each  partner's  interest  on  a  final  accounting1  for  the  pay- 
ment of  debts.3  Such  a  lien  is  not  affected  by  a  provision 
of  a  statute,  which  says  the  assignment  of  an  oil  and 
gas  lease  shall  be  void  unless  recorded,4  where  the  part- 
nership resulted  from  an  agreement  to  sink  wells  by 
persons  holding  a  gas  lease  as  tenants  in  common,5  and 
share  the  profits  and  losses  in  proportion  to  their  inter- 
est in  the  lease  and  a  partnership  name  was  selected 
and  the  business  was  carried  on  under  the  name  adopted 
although  the  gross  product  is  divided  instead  of  the  net 
profit.6  So  where  an  oil  and  gas  lease  was  pledged  by 
one  of  the  partners  to  some  firm  creditors,  thougli  not 

1.  Childers  vs.  Neeley,  —  W.  Va.,  — ;  34  S.  E.,  828. 

2.  Patrick  vs.   Weston,  22  Colo.,  45;  43  Pac.,  446;   Brown  vs. 

Beecher,  120  Pa.,  590;  15  Atl.,  608. 

3.  Childers  vs.  Neeley,  —  W.  Va.,  — ;  34  S.  E.,  828. 

4.  Ervin  vs.  Masterman,  16  Ohio,  C  C,  62. 

5.  Ervin  vs.  Masterman,  16  Ohio,  C  C,  62. 

6.  Ervin  vs.  Masterman,  16  Ohio,  C  C,  62. 


38  Partnership  Liens. 

complying*  with  the  laws  relating"  to  mortgages,  the 
creditors  do  not  lose  their  rights  in  equity  against  the 
leasehold  as  property  belonging  to  the  partnership.1  A 
partner  has  a  lien  on  the  property  in  oil  and  gas  produc- 
ing" property  and  such  a  lien  is  not  lost  by  a  sale  of  the 
property  by  the  partner.2  And  a  purchaser  is  presumed 
to  take  it  subject  to  the  partnership  debts  when  he  buys 
without  the  knowledge  of  the  co-partner.8  And  the 
partnership  lien  is  not  lost  by  signing  a  note  individual- 
ly to  secure  the  indebtedness  of  a  partnership  engaged 
in  the  production  of  oil  and  gas,4  and,  when  under  an 
agreement  to  prospect  for  gas,  the  partners  were  to  share 
in  the  profits  and  losses  according  to  the  amount  of  money 
subscribed,  and  in  pursuance  thereof,  after  notice  to  all, 
a  firm  name  was  selected  and  officers  elected;  their  acts 
create  a  partnership  among  the  members  and  they  are 
liable  to  third  persons  for  money  expended  and  labor 
furnished. B 

SEC.  9.  PARTNERSHIP  LIEN — How  LOST? — The  part- 
nership lien  on  property  is  lost  when  there  is  a  separation 
of  the  property  such  as  takes  place  when  the  partner- 
ship property  is  sold  and  a  division  of  the  proceeds  is 
made.6  So  where  three  persons  were  engaged  in  the 
production  of  petroleum,  and  at  the  time  they  formed  the 
partnership  it  was  agreed  that,  when  the  petroleum  was 
delivered  to  the  pipe  lines  of  a  third  person,  a  certificate 
of  each  partner's  share  should  be  issued  to  each,  the 
partner's  lien  was  gone  because  there  was  a  severance 
of  the  social  property  and  each  held  his  share  as  his 
separate  individual  property.7  So  a  lien  is  lost  when  a 
transfer  certificate  was  issued  by  a  pipe  line  company 

1.  Brown  vs.  Beecher,  120  Pa.,  590. 

2.  Ervin  vs.  Masterman,  16  Ohio,  C  C,  62. 

3.  Brown  vs.  Beecher,  120  Pa.,  590;  15  Alt.,  608. 

4.  'Brown  vs.  Beecher,  120  Pa.,  590. 

5.  Clark  vs.  Eumsey,  52  N.  Y.  Supp.,  417;  Contra  59  App.  Div., 

435. 

6.  Childers  vs.  Neely,  —  W.  Va.,  — ;  34  S.  E.,  828;  49  L.  R.  A. 

468;  2  Lindley  Part.  Sect.,  683;  1  Collyer  Part.  Sect.,  108. 

7.  Childers  vs.  Neely,  34  S.  E.,  828. 


Dissolution  of  Partnerships.  39 

and  the  partner  sold  his  share,  especially  when  the  part- 
nership agreement  provided  each  partner  could  dispose 
of  his  share  of  the  oil  produced. l  But  where  two  co-owners 
of  a  mine  exclude  the  third  and  lease  the  mine  to  a  third 
person,  the  owner  has  a  lien  on  the  ore  produced  by 
the  lessee  but  has  no  lien  on  the  ore  produced  by  the 
lessee  for  ore  taken  out  before  the  lessee  acquired  the 
mine. 2 

SEC.  10.  PARTNERSHIP — DISSOLUTION  BY  SALE — 
GROUNDS — RECEIVER. — The  sale  of  the  whole  property 
of  a  partnership  will  dissolve  the  partnership,  so  when 
two  persons  are  in  a  partnership  for  the  production  of 
gas  and  they  sell  the  entire  property  it  effects  a  dissolu. 
tion  of  the  partnership;3  and  when,  in  the  sale  of  the  gas 
well  which  was  the  sole  and  only  property  of  the  part- 
nership, it  was  agreed  between  the  partners  and  the 
purchaser  that  the  latter  was  to  furnish  gas  to  each  of 
the  partners,  but  the  vendee  failed  to  furnish  the  gas 
in  an  action  on  the  contract  for  a  breach  thereof,  a 
joint  action  cannot  be  maintained  where  the  gas  was  to 
be  furnished  to  each  in  proportion  to  the  interest  in  the 
gas  well,  since  the  partnership  was  dissolved.4  Where 
there  is  discord  and  dissention  between  the  members  of 
a  partnership  for  the  production  of  oil  and  gas,  such  is  a 
good  ground  for  a  dissolution;5  and  pending  an  action 
for  dissolution,  a  receiver  should  be  appointed  and  it  is 
wrong  to  enter  a  decree  excluding  one  member  of  the 
partnership  from  the  business  of  the  firm  and  permit 
others  to  continue  the  business.6 

1.  Ervin  vs.  Masterman,  16  Ohio  C  C,  62. 

2.  G.  V.  B.  Min.  Co.  vs.  First  Nat.  Bank,  95  Fed.  Rep.  23. 

3.  Penville  Natural  Gas  &  Oil  Co.  vs.  Thomas,  21  Ind.  App.,  1-51 

N.  E.,  351;  See  also  Wells  vs.  Ellis,  68  Cal.,  243:  Blacker 
vs.  Sands,  29  Kan.,  551;  Whitton  vs.  Smith,  Freem.  Ch. 
(Miss.),  231;  Wilson  vs.  Davis,  1  Mont.,  183;  Kennedy  vs., 
Porter,  109  N.  Y.,  526;  Thompson  vs.  Bowman,  6  Wall, 
316;  Theriot  vs.  Michel,  28  La.  Am.,  107. 

4.  Penville  Nat.  Gas  Co.  vs.  Thomas,  21  Ind.  App.,  1-51  N.  E., 

351. 

5.  Childers  vs.  Neely,  34  S.  E.,  828. 

6.  Childers  vs.  Neeley,  34  S.  E.,  828. 


40  Accounting  of  Partners. 

SEC.  11.  ACCOUNTING  ON  DISSOLUTION.  PRESUMP- 
TIONS.— Upon  a  bill  being-  filed  for  a  dissolution  of  a 
partnership  and  an  accounting1,  the  presumption  of  law 
is  that  the  interest  of  each  partner  is  equal;1  and  there 
is  a  presumption  also  that  when  the  interest  of  a  co- 
partner is  acquired  by  a  third  person,  such  third  person 
becomes  a  partner  though  he  takes  no  part  in  the  busi- 
ness.2 A  bill  for  an  accounting1  is  the  proper  remedy 
between  parties  who  are  engaged  in  producing1  oil  and 
gas  from  wells  and  selling1  the  same  and  hold  the  lands 
as  tenants  in  common,  from  which  the  oil  and  gas  are 
produced.3  When,  however,  the  land  is  part  of  the 
partnership  assets  and  the  partners  are  engaged  in  the 
production  of  oil,  equity  will  not  entertain  jurisdiction 
for  a  simple  accounting  and  a  continuance  of  the  part- 
nership, but  when  the  bill  shows  that  there  are  dissen- 
sions among  the  partners  and  there  are  debts  which 
some  of  the  partners  will  not  contribute  to  pay,  equity 
will  dissolve  the  partnership  and  order  its  assets  sold. 4 

1.  Clark  vs.  Brown,  83  CaL,  181;  23  Pac.,  289. 

2.  Taylor  vs.  Castle,  42  CaL,  367;  Nesbet  vs.  Nash,  52Cal.,540; 

Jerfferys  vs.  Smith,  3  Russ.,  158. 

3.  Johnson  vs.  Price,  172  Pa.,  427;  33  Alt.,  688. 

4.  Childers  vs.  Neeley,  34  S.  E.,  828;  Am.  &  Eng.  Die.  in  Eq. 

Vol.  5,  page  52;  Randolph  vs.  Kinney,  3  Rand.  Va.,394; 
Coville  vs.  Gilman,  13  W.  Va.,  314. 


Life  Tenants  and  Tenants  in  Dower. 


CHAPTER  IV. 

SECTION  1.  RIGHTS  OF  A  LIFE  TENANT.  Gas  and 
Petroleum  are  minerals  and  being-  minerals  are  part  of 
the  land.  The  rules  of  law  are  well  settled  that  a  life 
tenant  cannot  do  anything1  which  is  of  permanent  injury 
to  the  estate  of  the  reversioner  and  remainderman,  for 
there  is  a  duty  imposed  on  the  life  tenant  to  protect  the 
estate  of  the  remainderman  and  reversioner;1  so  a  life 
tenant  cannot  bore  for  oil  and  g~as  and  take  them  from 
the  ground,  because  the  oil  and  g~as  are  a  part  of  the  cor- 
pus of  the  estate;2  but  if  the  mines  or  wells  are  open  at 
the  time  of  the  vesting1  of  the  life  estate,  the  life  tenant 
may  work  them  to  exhaustion  as  they  are  then  consid- 
dered  as  mere  annual  profits  of  the  land.3  A  tenant 
for  life  is  also  entitled  to  take  reasonable  estovers,  such 
as  wood  from  off  the  land  for  fuel  purposes,  for  fences, 
agricultural  purposes  and  all  necessary  improvements.4 

SEC.  2.  WHAT  ARE  OPEN  WELLS  OR  MINES — LEASE 
FOR  OPERATIONS.  Where  the  owner  of  land  leased  it 
for  the  production  of  oil  and  g"as  and  then  conveyed  the 
premises  subject  to  a  life  estate  in  himself,  thereby 
reducing  himself  to  a  life  tenant,  and  gave  the  grantees 
a  fee  in  expectancy;  and  the  terms  of  the  lease  were: 

1.  Williamson  vs.  Jones,  43  W.  Va.,  562;  27  S.E.,  411;  38  L.R.A., 

694;  Bettman  vs.  Harness,  42  W.  Va.,  433;  Marshall  vs. 
Mellon,  179  Pa.  371. 

2.  Williamson  vs.  Jones,  43  W.  Va.,  562;  Marshall  vs.  Mellon,  179 

Pa.,  371. 

3.  Sayers  vs.  Hoskinson,  110  Pa.,  473;  Freer  vs.  Stotenbur,  36 

Barb.,  641. 

4.  4  Kent  Com.,  73. 


42  Lawful  Severance. 

that  the  lessee  should  hold  the  lease  for  a  period  of  five 
years  and  as  much  longer  period  as  oil  and  gas  might  be 
produced,  and  the  lessor  was  to  receive  one-eighth  of  the 
product  delivered  in  the  pipe  line;  and  the  deed  of  con 
veyance  contained  a  provision,  "that  second  party  takes 
the  same  subject  to  any  lease  for  oil  or  gas  made  by  the 
first  party  or  any  sale  of  royalty  for  oil  or  gas  made  by 
him,  and  the  first  party  retains  full  control  of  said  lands 
in  all  respects  and  for  all  purposes  during  his  lifetime;" 
and  the  life  tenant  claimed  the  royalty  due  under  the 
lease,  although  the  wells  were  not  bored  at  the  time  of 
the  conveyance,  the  court  decided  that  as  long  as  the 
land  was  lawfully  leased  to  be  opened  at  the  time  of  the 
conveyance  and  at  a  time  when  the  owner  had  a  right 
to  make  such  a  lease,  the  wells  are  considered  as  opened 
at  the  time  the  lease  is  executed  and  consequently  the 
grantor  is  entitled  to  the  royalties  accruing  under  the 
lease. 1  So  where  a  husband  made  a  lease  of  coal  lands 
a  number  of  years  before  his  death,  reserving  as  a  roy- 
alty one  dollar  per  acre  until  mining  operations  were 
begun  and  five  cents  per  ton  for  each  ton  of  coal  pro- 
duced and  no  operations  were  begun  before  his  death, 
"the  act  of  opening  the  mine  would,  in  such  case,  be 
practically  the  act  of  the  husband,  viz.,  authorized  by 
him,"  and  the  mine  was  treated  as  opened  at  the  death 
of  the  husband  so  the  widow  was  entitled  to  dower.2  So 
a  husband  is  entitled  to  curtesy  in  the  royalties  in  the 
wife's  separate  estate  when  the  wife  makes  a  mining 
lease  during  her  lifetime  though  no  mines  were  opened 
until  after  the  wife's  death.3 

SEC.  3.  LAWFUL  SEVERANCE  is  MADE  BY  LEASING. 
— Oil  or  gas  in  place  is  land  and  goes  with  the  inherit- 
ance but  the  life  tenant  is  seized  of  the  immediate  free- 
hold estate,  in  possession,  and  which  possession  extends 
from  the  surface  to  the  center  of  the  earth,  so  the  whole 


1.  Koen  vs.  Bartlett,  41  W.  Va.,  559;  23  S.E.,  664. 

2.  Priddy  vs.  Griffith,  150  111.,  560;  37  N.E.,  994. 

3.  Alderson  vs.  Alderson,  46  W.  Va.,  242;  33  S.  E.,  228. 


Open  Wells.  43 

corpus  of  the  estate  is  in  the  life  tenant.  The  rever- 
sioner  or  remainderman  has  no  right  to  the  possession 
of  any  part  of  the  land  and  has  no  right  to  use  or  enjoy 
any  part  of  the  estate  since  the  life  tenant  has  the 
immediate  freehold  estate  in  possession  and  the  sole 
right  to  possess,  use  and  enjoy  the  estate;  so  if  oil  or 
gas  wells  are  not  opened  at  the  time  of  the  vesting  of 
the  life  estate  the  reversioner  and  remainderman  have 
no  right  to  open  them,  and  if  wells  are  opened,  the  life 
tenant  has  a  right  to  use  and  enjoy  them  for  his  own 
benefit  for  the  wells  are  but  an  income  or  annual  profits, 
or,  when  an  oil  or  gas  lease  is  made,  a  lawful  severance 
takes  place  and  a  life  tenant  takes  them  because  they 
are  but  issues  and  profits  and  the  life  tenant  is  entitled 
to  the  full  enjoyment  and  use  of  the  land  and  all  profits 
arising  therefrom  during  the  continuance  of  his  life 
estate.1  When  the  wells  are  already  opened  at  the  time 
of  the  vesting  of  the  life  estate,  there  is  no  question  but 
the  oil  produce  is  but  a  part  of  the  income  of  the  estate 
and  belongs  to  the  life  estate  after  the  vesting  of  this 
estate  in  possession.2 

SEC.  4.  WHAT  is  CONSIDERED  AS  AN  OPEN  MINE 
OR  WELL. — A  mine  is  considered  as  opened  when  the 
vein  is  penetrated  and  mineral  taken  therefrom,  so  the 
sinking  of  a  new  opening  to  take  minerals  from  the 
same  vein  is  not  wasteland  when  a  quarry  is  worked 
by  sections  the  stripping  off  of  the  surface  to  cut  a  new 
section  is  legal;4  and  when  a  mine  was  opened  in  the 
lifetime  of  the  husband  but  discontinued,  the  wife  has  a 
right  to  work  it  or  receive  the  royalty  by  its  being 
worked;5  and  when  the  mines  were  opened  for  the  pur- 

1.  Koen  vs.  Bartlett,  41  W.  Va.,  559;  Bl.  Com.,  299,  309;  Crouch 

vs.  Puryear,  1  Band.  (Va.),  258;  E ley's  Appeal,  103  Pa., 
307. 

2.  Woodburns  Estate,  138  Pa.,  606;  21  Atl.,  16;  Bedford's  Ap- 

peal, 126  Pa.  117;  17  Atl.  538. 

3.  Crouch  vs.  Puryear,  1  Rand.  (Va.),  258. 

4.  Billings  vs.  Taylor,  10  Pick.',  460;  20  Am.  Die.,  533. 

5.  Priddy  vs.  Griffith,  150  111.,  560;  Gains  vs.  Green  Pond  Iron 

Min.  Co.,  33  N.  J.,  E.,  603. 


44  Mining  Lands. 

pose  of  obtaining  coal  for  fuel,  at  the  time  of  the  vest- 
ing1 of  the  life  estate,  they  will  be  considered  as  opened 
to  the  life  tenant  for  the  purpose  of  selling  the  coal;1 
and  when  the  lessee  was  to  pay  rents  such  rents  are 
part  of  the  income  and  go  to  the  life  tenant;2  and  when  the 
tenant  for  life  is  authorized  to  lease  the  lands,  such  ten- 
ant may  make  a  lease  of  the  coal  beneath  the  surface 
though  the  mines  were  unopened  when  the  estate  was 
acquired,  where  the  coal  is  the  principal  income.8 

SEC.  5.  PROFITS  OUT  OP  LANDS  HELD  FOR  MINING 
PURPOSES. — A  tenant  for  life  is  entitled  to  share  in  the 
profits  of  a  mine  where  the  land  is  held  for  mining  pur- 
poses, though  such  mines  were  not  opened  until  after 
the  vesting  of  the  estate.  So  when  an  owner,  at  the 
time  of  his  death  was  possessed  of  a  tract  of  land  as 
tenant  in  common  which  was  wholly  valueless  except 
for  mining  purposes,  and  also  was  the  owner  as  tenant 
in  common,  under  a  reservation  of  all  the  mines  and 
minerals  under  an  eighty  acre  tract  conveyed;  and,  after 
the  estate  was  administered  upon,  the  guardian  of  some 
minor  children  of  the  deceased  and  the  wife  as  general 
guardian  made  a  lease  of  the  land  under  an  order  of  the 
Court  for  the  purpose  of  developing  the  deposits  of  val- 
uable iron  ores  under  the  land;  and,  on  the  question  as 
to  the  distribution  of  $2800,  royalty  derived  from  the  80 
acre  tract,  the  court  awarded  the  widow  one-third  of  the 
royalty.  The  court  held  that  the  strict  rules  of  the 
common  law  did  not  apply  to  wild  land  fit  only  for  min- 
ing purposes;  and  as  the  statute,  as  well  as  the  common 
law,  gives  the  wife  the  use  of  one-third  of  all  the  land 
during  life,  she  is  entitled  to  dower  in  the  only  use  that 

1.  Neelvs.  Neel,  19  Pa.,  323. 

2.  Rankin's  App., ;  2  L.  R.  A.,  432;  Wentz's  App.,  106 

Pa.,  301;  McClintoek  vs.  Dana,  106  Pa.,  386;  Reynols  vs. 
Hanna,  (C.  C.  N  D  0)  55  Fed.  783;  Priddy  vs.  Griffith,  150 
111.,  560. 

3.  Rankin's  App.,  —  Pa.,  — ;  2  L.  R.  A.,  432;  Wentz's  App.,  106 

Pa.  301;  McClintoek  vs.  Dana,  106  Pa.,  386;  Willard  vs. 
Willard,  56  Pa.,  119. 


Exhaustion  of  Wells.  45 

can  be  made  of  the  land.1  So  when  a  lease  is  made  of 
oil  and  gas  lands,  the  royalties  received  take  the  place 
of  the  real  estate  or  the  oil  and  gas  taken  from  the  earth 
and  when  the  life  tenant  leases  the  land,  as  trustee  for 
the  remainderman  and  his  own  right  as  life  tenant,  the 
life  tenant  during  his  life  is  entitled  to  the  income 
derived  from  the  royalties.8  These  cases  may  be  sus- 
tained on  the  ground  that  the  life  tenant  has  a  freehold 
estate  in  the  lands  and  that  such  life  tenant  is  entitled 
to  the  possession  from  the  surface  to  the  center;  and 
that  the  remainderman  has  no  more  right  to  operate 
under  the  ground  than  upon  it,  so  if  the  mines  are 
opened  while  two  such  estates  exist,  then  the  life  tenant 
is  entitled  to  share  in  the  proceeds  of  the  estate.8  The 
widow,  however,  has  been  denied  dower  in  mines  opened 
after  the  death  of  her  husband  when  she  joined  in  the 
lease  as  guardian  under  an  order  of  the  court  but  it  was 
on  the  ground  of  estoppel.4 

SEC.  6.  OPEN  MINES  MAY  BE  WORKED  TO  EXHAUS- 
TION.— The  life  tenant  may  work  an  open  mine  to  ex- 
haustion if  there  is  no  restriction  in  the  grant  by  which 
the  estate  is  acquired,  as  when  the  rights  are  acquired 
under  dower  or  curtesy,  since  the  tenant  for  life  has  the 
usufruct  of  the  whole  land  and  takes  the  whole  profit 
that  can  be  derived  from  it  by  following  out  the  use 
made  of  the  land  by  the  person  from  whom  the  estate 
was  acquired.6  The  use  is  not  limited  to  the  use  made 
of  the  mines  by  the  person  who  transferred  the  estate, 
as  when  the  donor  used  coal  only  for  fuel,  the  donee  for 
life  may  use  the  coal  to  sell.6  And  should  the  tenant 
for  life  exhaust  the  mines  the  tenant  in  remainder  can 

1.  Seager  vs.  McCabe,  92  Mich.,  186. 

2.  Blakely  vs.  Marshall,  174  Pa.  425;  34  Atl.  564;  Wilson   vs. 

Hughes,43W.Va.,826;28S.E.,781;  —  S.E.—  ;39  L.E.A.,  292. 

3.  Koen  vs.  Bartlett,  41  W.  Va.,  559. 

4.  Dickim  vs.  Hamer,  1  Drew  &  S.,  284. 

5.  Koen  vs.  Bartlett,  41  W.  Va.,  559;  Rankin's  App.,  —  Pa.,  — ; 

2  L.  R.  A.,  429;  Shoemaker's  App.,  106.  Pa.,  392. 

6.  Neelvs.  Neel,  19  Pa.,  323. 


46  Corpus  of  Estate  Cannot  be  Destroyed. 

not  interfere  so  long"  as  the  life  tenant  uses  the  estate  as 
the  estate  came  to  the  life  tenant;1  and  all  the  life  ten- 
ant is  bound  to  do  is  to  yield  up  the  premises  in  the  con- 
dition the  lands  may  be  after  his  right  to  use  the  lands 
has  expired.2 

SEC.  7.  A  TENANT  FOR  LIFE  HAS  No  RIGHT  TO 
DESTROY  THE  CORPUS  OF  THE  ESTATE. — A  tenant  for 
life  has  no  right  to  open  oil  and  gas  wells  which  were 
not  opened  before  the  life  estate  vested  in  such  life  ten- 
ant.8 So  when  a  tenant  for  life  makes  a  lease  for  the 
production  of  oil  and  gas,  reserving  one-eighth  of  the 
product  as  a  royalty,  the  lease  is  void,  since  the  tenant 
would  be  guilty  of  waste  if  the  life  tenant  would  pro- 
duce oil  and  gas  from  wells  unopened  before  the  estate 
vested,  so  the  tenant  cannot  authorize  something  to  be 
done  which  the  tenant  cannot  do,  and  which  is  forbid- 
den by  law.4  So  where,  on  petition,  an  infant's  estate 
in  remainder  containing  oil  and  gas  was  sold  and  the 
infant  was  to  receive  a  certain  portion  of  the  royalty, 
and  the  life  tenant  another  portion,  the  Court  held  that 
a  sale  of  the  oil  and  gas  in  the  lands  by  lease  was,  in  ef- 
fect, a  disposition  of  the  corpus  of  the  estate;  and  as  the 
oil  and  gas  wells  were  not  opened  when  the  life  tenant 
acquired  the  estate,  the  life  tenant  could  not  consume 
any  portion  of  the  corpus  of  the  estate,  but  since  the 
life  tenant  was  entitled  to  the  entire  possession  of  the 
land  during  life,  so  the  life  tenant  was  entitled  to  the 
income  derived  from  the  royalties  received  from  the 
lands  for  life  and  the  remainderman  to  the  principal.5 
So  when  a  tenant  for  life  bores  oil  and  gas  wells  on  the 

1.  Irwin  vs.  Covode,  24  Pa.,  162. 

2.  Holman's  App.,  24  Pa.,  174. ' 

3.  Marshall  vs.  Mellon,  179  Pa.,  371;  35  L.  R.  A.,  816;  William- 

son vs.  Jones,  43  W.  Va.,  562;  38  L.  R.  A.,  694;  Wilson  vs. 
Hughes,  43  W.  Va.,  826;  39  L.  R.  A.,  292. 

4.  Marshall  vs.  Mellon,  179  Pa.,  371;  Marshall  vs.  Mellon,  17  Pa. 

Co.  Ct.,366;  Kenton  Gas  &  E.  Co.  vs.  Dorsey,  17  Ohio  C  C, 
101. 

5.  Wilson  vs.  Hughes,  43  W.  Va.,  826;  39  L.  R.  A.,  292;  Blakely 

vs.  Marshall,  174  Pa.,  425. 


Waste  by  Life  Tenant.  47 

land  and  extracts  these  products,  the  life  tenant  was 
held  liable  in  an  action  of  waste  at  common  law  under 
the  English  statute  of  Marlbridge.1 

SEC.  8.  WELL,  BORED;  KNOWLEDGE  OF  THE  REMAIN- 
DERMAN.—If  a  life  tenant  makes  a  lease  of  land  for  the 
purpose  of  boring-  for  oil  and  gas,  such  lease  is  void  as 
the  tenant  for  life  cannot  authorize  the  commission  of 
waste,  but  where  the  wells  are  drilled  at  great  expense 
and  some  of  the  tenants  in  remainder  have  knowledge 
of  that  fact  and  where  the  lessee  spent  considerable 
money  in  sinking  a  well  and  the  remainderman  would 
not  be  benefited  by  having  the  well  closed,  the  lessee 
will  be  entitled  to  be  compensated  for  the  improvements 
made  on  the  premises  and  will  have  to  pay  the  remain- 
derman a  fair  royalty  for  the  gas  or  oil  taken  thereafter 
from  the  premises  and  may  continue  operations.8 

SEC.  9.  ACCOUNTING  WHEN  TENANT  FOR  LIFE  COM- 
MITS WASTE. — Where  a  tenant  for  life  and  who  was 
tenant  in  fee  of  three-sevenths  interest,  bores  oil  wells 
on  the  land  under  a  hostile  claim  of  title  to  the  whole 
premises  and  converts  the  oil  to  his  own  use,  the  tenant 
for  life  is  guilty  of  waste  and,  in  an  accounting,  is  not 
entitled  to  settle  with  the  other  remaindermen  on  the 
basis  of  an  annual  rental  but  must  account  on  the  basis 
ot  rents  and  profits.3 

The  tenant  is  not  allowed  to  have  the  proportion  of 
the  proceeds  of  the  oil  which  belong  to  the  other  tenants 
in  common  invested  and  the  proceeds  of  the  income  paid 
to  him  for  life  because  this  can  be  done  only  when  the 
extraction  of  the  oil  was  not  wrongful,  but  the  remain- 
dermen are  entitled  to  their  share  at  once.4 

So,  also,  a  tenant  for  life  who  is  also  tenant  in  com- 
mon and  who  ousts  his  co-tenants  in  remainder  and 

1.  Williamson  vs.  Jones,  43  W.  Va.,  562;  38  L.  E.  A.,  694. 

2.  Gerkins  vs.  Kentucky  Salt  Co.,  100  Ky.,  734-39,  S.  W.,  444; 

Rev.,  36;  S.  W.,  1. 

3.  Williamson  vs  Jones,  43  W.  Va.,  562. 

4.  Williamson  vs.  Jones,  43  W.  Va.,  562;  Williams  vs.  Duke  Bol- 

ton,  1  Cox  Ch.  Cas.,  72;  3  P.  Wms.,  268. 


48  Community  Property. 

claims  the  entire  title  and  has  notice  of  their  claim  is 
not  entitled  to  compensation  for  improvements  made  on 
the  land  under  a  statute  allowing  compensation  to  a 
person  who  makes  improvements  on  land  under  the 
belief  that  such  person  has  a  good  title. l  But  when  the 
remaindermen  go  into  a  court  of  equity  asking-  for  relief 
and  for  an  accounting,  for  the  oil  extracted  from  the 
land,  such  tenant  will  be  allowed  all  costs  of  production, 
including  the  cost  of  boring  wells  which  are  productive, 
as  a  set-off  against  rents  and  profits. 2 

SEC.  10.  COMMUNITY  PROPERTY. — The  wife  is  not 
entitled  to  the  possession  of  property  acquired  during 
marriage  after  the  husband's  death  where  the  claim  was 
but  a  mere  possessory  right  which  the  United  States 
laws  give  the  locator  of  a  mining  claim.8  However,  a 
claim  not  patented  is  real  estate,  which  will  be  commu- 
nity property,  if  acquired  during  marriage,  but  if  the 
locator  disposes  of  his  interest  and  the  assignee  takes 
out  a  patent,  the  locator's  right  merges  and  is  lost  and 
the  widow  has  no  claim  on  the  property  after  the  death 
of  the  husband,4  because  a  conveyance  is  considered  an 
abandonment  of  the  locator's  claim;6  but  it  has  been 
held  in  Idaho  that  mining  property  acquired  under  the 
laws  of  the  United  States  by  a  husband  who  lived  in  the 
state  is  community  property,  though  the  wife  was  never 
a  resident  of  the  state.6 

SEC.  11.  PROTECTION  OF  ESTATE  OP  REMAINDER- 
MEN FROM  DRAINAGE  THROUGH  OTHER  LANDS.  — The 
remaindermen  or  a  tenant  in  common  has  an  undoubted 

1.  Williamson  vs.  Jones  43  W.  Va.,  562;    Foster  vs.  Weaver  118; 

Pa.,  42;  Ward  vs.  Ward,  40  W.  Va.,  611;  29  L.  R.  A.,  449. 

2.  Williamson  vs.  Jones,  43  W.  Va.,  562;  Eflnger  vs.  Hall,  81 

Va.  103;  3  Pom.  Eq.  1241. 

3.  Phoenix  Mining  aud  Mill  Co.  vs.  Scott,  20  Wash.,  48-54  Pac., 

777. 

4.  Black  vs.  Elkhorn  Min.  Co.,  49  Fed.  Rept.,  549. 

5.  Black  vs.  Elkhorn  Min.  Co.,  163  IJ.  S.,  445;  7  U.  S.  App.,  393. 

6.  Jacobson  vs.  Bunker  Hill  &  S.  Min.  Co.,  2  Idaho,  863;  28  Pac. 

396. 


Protection  of  Estates  in  Remainder.  49 

right  to  ask  the  aid  of  a  court  of  equity  to  permit  such 
remainderman  or  tenant  in  common  to  bore  for  oil  and 
gas  to  prevent  a  destruction  of  the  estate  by  being 
drained  by  wells  on  other  lands.  On  a  question  involv- 
ing the  wrongful  extraction  of  oil  by  a  life  tenant  and 
who  was  also  a  tenant  in  common,  a  court  of  equity  was 
held  to  have  such  a  power.1  The  principle  above  an- 
nounced finds  support  in  two  late  cases  though  they  do  not 
involve  oil  or  gas  rights,  yet  the  principles  are  appli- 
cable.2 The  rule  in  such  cases  is,  that  whenever  a  right, 
which  is  recognized  by  law,  exists,  a  court  of  equity  has 
jurisdiction  to  protect  that  right,  so  when  a  person  gives 
a  life  estate  to  one,  and  a  remainder  contingent  or  vested 
to  others,  a  court  of  equity  has  a  right  to  sell  or  dispose 
of  the  property  to  prevent  the  destruction  of  the  remain- 
der, even  though  the  instrument  which  creates  the 
estate  provides  that  no  sale  or  disposition  shall  be  made 
of  the  estate  during  the  continuance  of  the  life  estate.8 
The  power  of  a  court  of  equity  to  furnish  an  adequate 
remedy  in  the  event  of  danger  of  a  destruction  of  the 
remainder  is  undoubted,  even  though  the  persons  who 
are  to  receive  the  property  are  yet  unascertained,  be- 
cause such  a  proceeding  is  one  in  rem;  and  in  such  a  case 
the  scheme  of  the  creator  of  the  estate  may  be  invaded, 
if  it  becomes  necessary  to  preserve  the  estate  from  de- 
struction; but,  in  such  a  case,  the  preservation  of  the 
entire  property  must  be  the  aim  of  the  court  when  it 
assumes  special  jurisdiction.4  If  a  sale  is  made  of  prop- 
erty in  such  an  event,  the  proceeds  must  be  preserved  to 
be  paid  over  to  the  contingent  remaindermen  at  the 
time  they  would  receive  the  estate  in  remainder,  if  not 
sold;  and  the  income  from  the  proceeds  to  be  paid  to  the 
life  tenant  during  life.6 

1.  Williamson  vs.  Jones,  43  W.  Va.,  562;  38  L.  R.  A.,  700. 

2.  Gavin   vs.    Curtin,    171   111.,   640:    Ruggles  vs.    Tyson,    104 

Wis.,  500;  79  N.  W.,  766;   81  N.  W.,  848;  Contra  ex  parte 
Yancy,  124  N.  C.,  151. 

3.  Gavin  vs.  Curtin,  171  111.,  640. 

4.  Ruggels  vs.  Tyson,  104  Wis.,  500. 

5.  Gavin  vs.  Curtin,  171  111.,  640;  Ruggels  vs.  Tyson,  104  Wis., 

500. 


TENANTS  IN  COMMON. 


CHAPTER  V. 

SEC.  1.  ESTATES  OF  TENANTS  IN  COMMON. — The 
common  law  doctrine  is,  that  tenants  in  common  are 
seized  of  each  and  every  part  of  the  estate,  but  it  is  not 
in  the  power  of  one  to  convey  the  whole  of  the  estate  or 
the  whole  of  a  distinct  portion  of  it,  or  give  a  valid 
release  for  injuries  done  thereto;1  and  a  deed  made  by 
one  co-tenant  for  his  share  has  been  held  by  some  courts 
invalid  as  against  the  other  co-tenants.2  One  co-tenant 
cannot  lawfully  commit  waste,  or  destroy  the  common 
property  or  do  any  act  which  shall  be  a  permanent 
injury  to  the  estate.8  One  tenant  in  common  cannot 
make  a  lease  of  the  land  for  the  mining"  of  coal  when  the 
mines  are  not  open,  because  that  would  be  a  destruction 
of  the  estate;4  nor  can  such  a  tenant  make  a  lease  to 
take  ore  from  the  lands,5  nor  can  one  tenant  in  common 
take  petroleum  from  the  lands  without  being"  guilty  of 
waste." 

SEC.  2.  CO-TENANTS  CAN  NOT  GIVE  LEASE  TO  EX- 
TRACT THE  MINERALS. — Where  one  tenant  in  common 
made  a  lease  for  the  purpose  of  taking  coal  from  the 

1.  Murray  vs.  Honerty,  70  111.,  320. 

2.  Marshall  vs.  Trumball,  28  Conn.,  183;  Hutchinson  vs.  Charr, 

39  Maine,  513;  4  Kent's  Com.,  368. 

3.  Murray  vs.  Honerty,  70  111.,  320;  McLellan  vs.  Jenness,  43  Vt. 

183;  Agnew  vs.  Johnson,  17  Pa.,  373;  Lowe  vs.  Miller,  3 
Gratt  205. 

4.  Murray  vs.  Honerty,  70  111.,  320. 

5.  Omaha  &  Grant  Smelting  &  Ref.  Co.  vs.  Tabor,  13  Colo.,  41;  5 

L.R.  A.,236. 

6.  Williamson  vs.  Jones,  43  W.  Va.,  562;  38  L.  R.  A.,  694. 


Tenants  as  Partners.  51 

lands  and  the  lessee  entered  and  stripped  off  the  surface 
and  took  coal  from  the  lands,  the  lessee  was  guilty  of  a 
trespass  and  the  commission  of  waste,  because  one  ten- 
ant in  common  could  not  do  this  act,  so  the  tenant  could 
not  authorize  any  other  person  to  take  coal.1  So  where 
one  tenant  in  common  grants  a  license  to  a  third  person 
to  enter  and  remove  precious  ores  from  the  common  es- 
tate, such  license  does  not  extend  further  than  it  was 
within  the  power  of  the  person  who  gave  the  license, 
and  if  the  tenant  took  the  ores  himself  he  could  not  jus- 
tify because  he  is  tenant  in  common,  as  the  other  ten- 
ants in  common  could  have  the  same  action  against  the 
tenant  as  they  could  have  against  a  stranger  and  that 
an  action  on  the  case  may  be  maintained  by  one  tenant 
in  common  against  another  for  the  misuse  of  property, 
though  not  amounting  to  the  total  destruction  of  the 
property.2 

SEC.  3.  TENANTS  IN  COMMON  AS  PARTNERS.  NOT 
LIABLE  AS  SUCH. — Tenants  in  common  are  jointly  seized 
of  the  entire  estate  and  the  right  to  enter  and  possess 
the  estate  is  co-equal  in  all  and  each  is  entitled  to  occu- 
py their  share  of  the  entire  premises  and  at  common  law 
joint  tenants  and  tenants  in  common  are  regarded  as 
partners.3  So  if  one  tenant  in  common  or  joint  tenant 
fails  to  occupy  the  premises  without  fault  of  the  other 
co-tenants,  it  furnishes  no  ground  for  an  action  at  com- 
mon law,4  since  such  possession  results  from  the  nature 
of  the  estate.6  Prom  these  rules  it  results  that  if  one 
tenant  in  common  of  an  oil  lease  exclude  his  co-tenant, 
the  tenant  commits  a  wrong  because  each  tenant  is 
entitled  to  the  entire  possession,  and  where  such  exclu. 

1.  Murray  vs.  Honerty,  70  111.,  320. 

2.  Omaha  &  Grant  Smelting  &  Ref .  Co.  vs.  Tabor,  13  Colo.,  41;  5 

L.  R.  A.,  236;  McLellan  vs.  Jenness,  43  Vt.,  183;  Agnew  vs. 
Johnson,  17  Pa.,  373;  Lowe  vs.  Miller,  3  Gratt,  202. 

3.  Hamilton  vs.  Conine,  28  Md.,  640;  Isreal  vs.  Isreal,  30  Md., 

120;  Crane  vs.  Waggoner,  27  Ind.,  52. 

4.  Boyer  vs.  Holmes,  6  Gray,  118;  Tyner  vs.  Finner,  4  La.,  469. 

5.  Akin  vs.  Jefferson,  65  Tex.,  137. 


52  Dealings  Between  Tenants. 

sion  is  tortuous,  the  tenant  excluded  is  entitled  to  recov- 
er the  value  of  the  oil  in  the  tanks  without  deducting 
the  expense  of  production.1  Although  tenants  in  com- 
mon and  joint  tenants  are  looked  upon  as  partners,  yet 
the  liabilities  between  them  are  not  the  same  as  part- 
ners, so  where  co-tenants  own  oil  property  and  they 
agree  to  excavate  for  oil  and  each  paying  expenses  ac. 
cording  to  the  estate  held  by  each  and  the  production  to 
be  divided  the  same  way,  the  agreement  does  not  make 
them  partners;8  nor  does  any  presumption  arise  that 
they  are  partners  simply  because  they  are  tenants  in 
common.3 

SEC.  4.  DEALINGS  BETWEEN  TENANTS  IN  COMMON. 
OWNER  OF  THE  SURFACE  AND  THE  MINERAL.— One  ten- 
ant in  common  holds  his  title  independent  of  his  co-ten- 
ants and  there  is  no  community  of  interests  between 
them  as  in  the  case  of  partnerships;  so,  when  two  ten- 
ants in  common  hold  an  oil  and  gas  lease  and  one  tenant 
purchases  the  interest  of  the  other,  the  purchaser  is  not 
bound  to  disclose  to  the  vendor  that  oil  has  been  discov- 
ered in  lands  near  by  in  which  the  vendor  has  no  inter- 
est;4 nor  is  a  trust  and  confidence  created  between  them 
simply  because  the  tenant  who  is  the  purchaser  has  a 
mortgage  on  the  interest  of  his  co-tenant  to  secure  him 
against  loss  because  of  a  guaranty  to  a  third  person  and 
such  purchaser  is  not  bound  to  disclose  the  productive- 
ness of  lands  in  the  neighborhood.5 

A  co-tenancy  does  not  exist  between  the  owner  of 
the  surface  and  the  owner  of  the  mineral  when  there  has 
been  a  severance,  so  the  tenant  of  the  surface  may  ac- 
quire an  outstanding  title  to  the  minerals;6  and  the  own- 
er of  the  mineral  rights  under  a  reservation  in  a  deed  may 


1.  Foster  vs.  Weaver,  118  Pa.,  42;  12  Alt.,  313. 

2.  Butler  Savings  Bank  vs.  Osborne,  159  Pa.,  10;  28  Atl.,  163. 

3.  Neill  vs.  Shamburg,  158  Pa.,  263;  27  Atl.,  992. 

4.  Neill  vs.  Shamburg,  158  Pa.,  263;  27  Atl.,  992. 

5.  Neill  vs.  Shamburg,  158  Pa.,  263;  27  Alt.,  992. 

6.  Virginia  Coal  &  Iron  Co.  vs.  Kelley,  93  Va.,  332;  24  S.  E.,  1020. 


Acts  of  One  Co  Tenant  Binding  Another.  53 

purchase  the  title  of  the  surface  owner  at  a  tax  sale  and 
thus  acquire  the  whole  title  by  such  purchase.1 

SEC.  5.  ONE  CO-TENANT  BOUND  BY  THE  ACTS  OF 
ANOTHER  IN  SOME  CASES. — Where  it  is  necessary  for 
the  preservation  of  the  leasehold  interest  that  certain 
work  should  be  done  on  the  leasehold  premises  in  order 
that  the  same  may  be  preserved,  one  tenant  in  common 
is  bound  for  his  proportion  of  the  expenses  incurred  in 
doing*  such  necessary  work. 2  So  where  two  joint-tenants 
make  a  lease  one  may  accept  the  surrender  so  as  to  re- 
lieve the  lessee  from  the  payment  of  rent. 3  So  also  when 
joint  lessees  own  a  lease  for  the  production  of  oil  and 
one  of  them  surrenders  the  lease  with  the  knowledge 
and  consent  of  the  others,  and  with  the  intention  of  sur- 
rendering1 the  lease  as  to  all,  such  lessees  will  be  bound 
by  the  surrender. 4  But  a  tenant  in  common  is  not  bound 
to  pay  for  labor  performed  in  pumping  an  oil  well, 
where  such  tenant  offered  to  furnish  a  capable,  compe- 
tent person  to  do  the  work,  and  the  co-tenants  refused  to 
accept  the  services  of  such  person  or  permit  him  to  do 
the  work,  under  a  statute  which  provides  that  any  per- 
son performing  labor  of  any  kind  in  pumping  an  oil  well 
may  recover  from  any  tenant  in  common,  provided,  how- 
ever, that  no  tenant  in  common  shall  be  required  to  pay 
any  share  of  the  expense  of  operations  commenced  and 
carried  on  without  his  authority  and  consent.6 

SEC.  6.  WHEN  CO-TENANTS  ARE  LIABLE  AS  PART- 
NERS.— Where  tenants  in  common  own  lands  and  also  oil 
wells,  fixtures  and  machinery  on  the  premises,  a  part- 
nership is  not  created  between  them  where  they  all 
agree  that  another  well  be  sunk  on  the  land  and  each 

1.  Hutchinson  vs.  Kline,  —Pa.,  — ;  49  Atl.,  312.    « 

2.  Beck  vs.  O'Connor,  21  Mont.,  109;  53  Pac.  94;  See  also  Pren- 

tice vs.  Jansen,  79  N.  Y.,  478;  Jenkins  vs.  Jenkins,  —  N. 
J.  Eq.,— ;  5  Atl.,  134;  Eads  vs.  Rether ford,  114  Ind.,  273;  16 
N.E.,  587;  Holbrook  vs.  Harrington,  —  Cal.,  — ;  36  Pac.  365. 

3.  Churchill  vs.  Lammers,  60  Mo.  App.,  244. 

4.  Hooks  vs.  Forst,  165  Pa.,  238;  30  Atl.,  846. 

5.  Murtland  vs.  Callahan,  2  Pa.  Super.  Ct.,  345. 


54  When  Go- Tenants  are  Partners. 

one  is  to  pay  his  share  of  the  cost  of  sinking-  the  well 
and  that  the  product  of  the  well  would  be  divided  in 
proportion  to  the  interest  of  each,  although  each  tenant 
must  advance  money  for  losses  sustained,  in  case  the 
product  of  the  well  would  not  exceed  the  cost  of  produc- 
tion, because  the  losses  are  to  be  sustained  by  each 
tenant  individually  who  is  not  bound  to  pay  any  part  of 
the  other  co-tenant's  share  of  the  expenses.  Where  the 
parties  are  co-tenants,  there  must  be  a  distinct  and  ex- 
pressed agreement  to  change  the  relationship  from  a  co- 
tenancy to  one  of  partnership.1  So  where  tenants  in 
common  hold  a  lease  on  land  and  one  of  them  was  to 
drill  for  oil  and  the  others  should  contribute  to  the  cost 
of  drilling  in  proportion  to  the  interest  in  the  lease;  and 
the  oil  produced  was  to  be  turned  over  to  a  pipe  line; 
and  the  oil  so  delivered  was  to  be  credited  in  proportion 
to  the  interest  of  each  in  the  land,  they  are  not  partners 
and  the  other  co-tenants  are  not  liable  for  the  supplies 
purchased  by  the  tenant  who  drilled  the  well.2  But 
when  a  lease  of  oil  and  gas  lands  is  made  to  parties  as 
co-tenants,  and  the  co-tenants  are  required  to  sink  wells 
within  a  specified  time,  under  a  penalty  of  a  forfeiture 
of  the  lease,  so  as  to  prevent  the  land  from  being 
drained  through  wells  on  other  lands,  because  oil  or  gas 
may  be  completely  extracted  from  the  lands  through 
wells  on  other  lands,  there  is  no  reason  or  principle 
why  the  co-tenants  would  not  be  chargeable  for  the  nec- 
essary work  for  the  preservation  of  the  estate,  as  it  has 
been  held  that  when  persons,  their  heirs,  and  assigns, 
have  been  granted  valuable  privileges  in  lands,  and  such 
grant  is  to  them  as  tenants  in  common,  and  to  fulfill 
the  purposes  of  the  grant  and  to  preserve  the  same  from 
forfeiture,  some  of  the  co-tenants  expended  money  there- 
on, the  other  co-tenant,  who  was  a  foreigner,  was  held 
to  be  bound  for  his  share  under  an  implied  consent;* 
and  it  has  been  held  that  such  authority  exists  in  the 

1.  Dunham  vs.  Lovelock,  158  Pa.,  197;  27  Atl.,  990. 

2.  Taylor  vs.  Fried,  161  Pa.,  53;  28  Atl.,  993. 

3.  Haven  vs.  Mehlgarten,  19  111.,  90. 


V" 


Couvertion  of  Minerals  by  Co  Tenants.  55 

preservation  of  mines  and  one  tenant  has  a  lien  for  such 
expenses  on  his  co-tenants'  interest;1  and  for  the  repairs 
to  a  house  where  it  is  a  common  benefit.* 

SEC.  7.  LIABILITY  OF  ONE  CO-TENANT  FOR  MIN- 
ERALS TAKEN  BY  HIM — MEASURE  OF  DAMAGES. — It  has 
been  held  that  where  one  co-tenant  requests  the  other 
co-tenants  to  join  him  in  the  production  of  oil  and  the 
other  co-tenants  refuse,  such  tenant  is  liable  only  for 
the  customary  royalty,3  but  when  one  co-tenant  excludes 
another  co-tenant,  and  his  acts  are  tortuous,  the  co-ten- 
ant excluded  is  entitled  to  his  share  of  the  product 
stored  in  tanks  and  the  co-tenant  who  excluded  him  was 
allowed  nothing"  for  production.4  So  when  a  life  tenant 
who  is  also  a  tenant  in  common  bores  wells  on  the  land 
under  the  claim  of  absolute  ownership,  such  tenant  is  a 
trespasser  and  should  not  be  allowed  anything  in  a 
court  of  law  for  the  production  of  oil;'  and  where  a 
licensee  wrongfully  extracted  minerals  from  lands  be- 
longing to  co-tenants,  it  was  held  that  the  measure  of 
damages  depended  largely  on  the  form  of  the  action 
brought  to  recover  damages,  and  whether  the  action  is 
in  replevin  to  recover  the  property  severed,  or  for  dam- 
ages to  the  land  itself,  or  for  the  conversion  of  a  chat- 
tel.6 Where  trover  is  brought  the  rule  of  damages  is 
and  should  be  proper  compensation  for  property  taken 
and  converted;7  and,  in  a  court  of  equity,  a  co-tenant  is 

1.  Beck  vs.  O'Connor,  21  Mont.,  109;  53  Pac.,  94. 

2.  Alexander  vs.  Ellison,  79  Ky.,  148;  Coffin  vs.  Heath,  6  Met., 76. 

3.  Schriber  vs.  National  Transit  Co.  (C.  P.),  12.  Pa.  Co.  Ct.,  657. 

4.  Foster  vs.  Weaver,  118  Pa.,  42;  12  AtL,  313. 

5.  Williamson  vs.  Jones,  43  W.  Va.,  562;  27  S.  E.,  411. 

6.  Omaha  &  Grant  Smelting  and  Refining  Co.  vs.  Tabor,  13  Colo., 

41;  5  L.  R.  A.,  236;  See  also  Martin  vs  Porter,  5  Mees.  & 
W.,  352;  Wild  vs.  Holt,  9  Mees.  &  W.,  672;  Morgan  vs. 
Powell,  3  Q.  B.,  78;  Hilton  vs.  Woods,  Q.  R.  4  Eq.,  432; 
Maye  vs.  Tappin,  23  Cal.,  306;  Colemans  App.,  62  Pa.,  252; 
Forsythe  vs.  Wells,  41  Pa.,  291;  Kier  vs.  Peterson,  41  Pa., 
357;  Cushingvs.  Longfellow,  26  Me.,  306;  Moody  vs.  Whit- 
ney, 38  Me.,  174. 

7.  Omaha  &  Grant  Smelting  &  Ref.  Co.  vs  Tabor,  13  Colo.,  41. 


56  Injunction  by  Co- Tenant. 

allowed  the  cost  of  production  of  oil;1  and  where  a  ten- 
ant in  common  was  in  sole  possession  and  bored  wells 
on  the  premises  the  tenant  was  charged  with  rents  and 
profits  and  not  with  rental,  but  was  allowed  for  expenses 
and  improvements. 8  And  where  the  salt  wells  were  opened 
before  the  co-tenancy  arose  between  the  parties,  and  one 
tenant  works  them,  the  tenant  was  chargeable  only  with 
a  rental  as  the  land  was  only  used  as  it  was  when  the 
estate  vested.3  And  the  same  rule  applies  where  all 
co-tenants  open  a  mine  and  thereafter  only  one  tenant 
works  it.4 

SEC.  8.  INJUNCTION  BY  CO-TENANT — LESSEE. — 
Where  a  person  acquires  a  lease  from  several  co-tenants 
for  boring  for  oil  and  gas  though  he  can  not  bore  for  oil  or 
gas  without  the  consent  of  all  the  co-tenants  or  all  join- 
ing in  the  lease,  but  the  lessee  has  such  an  interest  in 
the  land  that  the  lessee  may  enjoin  a  trespasser  from 
sinking  wells  on  the  lands.5  So  when  one  tenant  in 
common  sinks  wells  on  the  lands  under  a  claim  of  own- 
ership, and  produces  large  quantities  of  oil,  an  injunc- 
tion will  lie  to  stay  the  commission  of  waste  thereafter;6 
and  an  injunction  will  be  granted  to  prevent  waste 
where  infants  are  remaindermen  and  their  title  was  not 
divested  by  a  judicial  sale  of  the  land  because  they  were 
not  made  parties  under  the  belief  that  they  were  not 
necessary  parties,7  but  where  the  object  of  the  proceed- 
ings is  to  sell  the  infant  co-tenants'  interest,  adult  co- 
tenants  are  not  necessary  parties,  and  such  can  not  be 
set  up  to  defend  an  injunction  proceeding  to  prevent 
waste. 8 

1.  Williamson  vs.  Jones,  43  W.  Va.,  562;  Ruffner  vs.  Lewis,  7 

Leigh.,  720;  30  Am.  Dec.,  513. 

2.  Early  vs.  Friend,  16  Gratt,  21-52;  78  Am.   Dec.,  649;   McCord 

vs.  Oakland  Quicksilver  Min.  Co.,  64  Cal.,  139. 

3.  Graham  vs.  Pierce,  19  Gratt,  28;  100  Am.  Dec.,  658. 

4.  Trees  vs.  Eclipse  Oil  Co.,  47  W.  Va.,  107;  34  S.  E.,  933. 

5.  Williamson  vs.  Jones,  43  W.  Va.,  562;  Williamson  vs  Jones,  39 

W.  Va.,231. 

6.  Williamson  vs.  Jones,  43  W.  Va.,  562. 

7.  Trees  vs.  Eclipse  Oil  Co.,  47  W.  Va.,  107;  34  S.  E.,  933 


Damages  for  Severance  of  Minerals.  57 

SEC.  9.  SEVERANCE  OF  MINERALS  BY  Co  TENANTS 
AND  OTHERS — MEASURE  OF  DAMAGES.— It  is  a  well 
established  rule  that  when  any  part  of  realty  is  severed, 
the  part  so  severed  becomes  personal  property  and 
belongs  to  the  owner  of  the  next  vested  estate  of  inher- 
itance;1 and  the  owner  of  severed  chattel  may  seizejt 
or  bring-  trover  for  its  conversion,  as  it  came  from  the 
land,  or  bring  an  action  of  replevin  or  detinue  or  bring 
an  action  of  trespass.2  In  case  of  remainders  the  per- 
son who  is  in  being  and  would  take  if  the  previous  estate 
should  come  to  an  end  will  take  them  absolutely  against 
the  wrongdoer.3  So  where  a  life  tenant  and  who  is  also 
tenant  in  common  takes  oil  from  the  ground,  the  other 
tenants  in  remainder  and  who  are  tenants  in  common, 
may  claim  their  portion  of  the  oil  at  once,4  because  the 
oil  in  the  earth  belongs  to  the  owner  of  the  fee,  and 
when  unlawfully  taken  therefrom  by  a  wrongdoer,  the 
title  of  such  owner  remains  perfect  and  may  pursue  it 
and  reclaim  it  wherever  he  finds  it.5  And  the  purchaser 
of  ore  from  one  who  took  the  same  from  lands  under  a 
license  from  a  co-tenant  is  liable  for  its  conversion  the 
same  as  the  person  who  took  it. 6  In  an  equitable  action 
to  remove  a  cloud  from  the  title,  where  the  defendant 
entered  the  land  to  mine  coal  under  an  honest  but  erro- 
neous belief  that  he  was  owner,  and  mined  coal  and  built 
houses  on  the  premises,  the  owner  of  the  land  was 
entitled  to  recover  the  value  of  the  coal  in  situ,  but  the 
amount  to  be  recovered  should  be  reduced  by  the  value 

1.  Williamson  vs.  Jones,  43  W,  Va.,  562;  University  vs.  Tucker, 

31  W.  Va.,  622;  Whitfield  vs.   Bewit,  2  P.  Wins.,  240;  I. 
Lomax  Digest,  56. 

2.  Williamson  vs.  Jones,  43  W.  Va.,  562;  Omaha  &  Grant  Smelt- 

ing and  Ref.  Co.  vs.  Tabor,  13  Colo.,  41. 

3.  Williamson  vs.  Jones,  43  \\^.  Va.,  562;  Pigot  vs.  Bullock,! 

Ves.  Jr.,  479. 

4.  Williamson  vs.  Jones,  43  W.  Va.,  562. 

5.  Hughes  vs.  United  Pipe  Lines,  119  N.  Y.,  423. 

6.  Omaha  &  Grant  Smelting  &  Ref.  Co.  vs.  Tabor,  13  Colo.,  41; 

See  also  Clark  vs.  Wells,  45  Vt.,  4;  Clark  vs.  Rideant,  39 
N.  H.,  238;  Carter  vs.  Kingman,  103  Mass.,  517. 


58  Form  of  Action  to  Recover. 

of  the  permanent  improvements  put  on  the  land;1  but  in 
trespass,  where  the  digging  was  willful  and  wrongful, 
the  trespasser  is  not  allowed  anything  for  digging  and 
the  measure  of  damages  is  the  value  of  the  coal  when 
separated  and  when  it  first  becomes  a  chattel;*  and  for 
oil,  the  value  of  the  oil  in  the  ground.3 

Title  to  the  severed  part  of  the  real  estate  does  not 
change  unless  the  change  in  form  has  been  so  great  as  to 
change  the  identity  and  the  owner  may  re-take  the  min- 
erals into  his  possession  without  paying  the  trespasser  for 
his  labor  or  money  expended.  *  So  standing  trees  cut  into 
cord  wood  may  be  reclaimed  by  the  true  owner5  and  the 
owner  of  the  land  is  entitled  to  retake  logs  cut  on  his 
land  by  a  trespasser  and  transported  to  a  distant  place8 
and  the  title  does  not  change  by  changing  timber  to 
charcoal,7  and  to  coal  which  is  wrongfully  severed  the 
title  does  not  change.8 

SEC.  10.  REPLEVIN,  TROVER,  TRESPASS  de  bonis 
AND  TRESPASS  quare  clausum  AND  STATUTORY  ACTIONS 
FOR  PROPERTY  WRONGFULLY  SEVERED  FROM  THE 
REALTY. — Replevin  will  lie  for  boards  made  from  the 
trees  by  the  owner  of  the  soil  against  a  trespasser;9  and 
also  made  into  cord  wood,10  and  where  the  logs  are 

1.  Ross  vs.  Scott,  15  Lea,  (Tenn)  489. 

2.  McLean  County  Coal  Co.  vs.  Lennon,  91  111.,  561;  Same  vs. 

Long,  81  111,  359;  Morgan  vs.  Powell,  43  Eng.  Com.  L.,  734; 
Martin  vs.  Porter,  5  Mees.  &  W.  302;  Wild  vs.  Holt,  9 
Mees.  &  W.,  672;  Berlin  Coal  Co.  vs.  Cox, 39  Md.,  1;  Sunny- 
side  Coal  and  Coke  Co.vs.  Reitz,  —  Ind.  App.,  — ;  39  N.E., 
541;  Also  14  Ind.,  App.,  487;  43  N.  E.,  46. 

3.  Dyke  vs.  National  Transit  Co.,  22  App.  Div.,  360. 

4.  Busch  vs.  Fisher,  89  Mich.,  200;  Gates,  vs.  Rifle  Boom  Co.,  70 

Mich,  316:  Illinois  &  St.  Louis  Ry.  Co.  vs.  Ogle,  82  111.,  627. 

5.  Isle  Royal  Min.  Co.  vs.  Hertin,  37  Mich.,  332. 

6.  Gaskins  vs  Davis,  115  N.  .C,  85. 

7.  Curtis  vs.  Groat,  6  Johns,  168-  5  Am.  Dec.,  204. 

8.  Robertson  vs.  Jones,  71  111.,  405;  Sunnyside  Coal  &  Coke.  Co. 

vs.  Reitz,  —  Ind.  App.,  — ;  39  N.  E.,  541. 

9.  Davis  vs  Easley,  13  111.,  192. 

10.  Robertson  vs.  Jones,  71  111.,  405. 


Trover  for  Minerals  Severed.  59 

changed  into  lumber,  the  lumber  may  be  recovered  in  an 
action  in  replevin  if  found,  and  where  the  boards  cannot 
be  recovered,  the  value  of  the  boards,  less  the  labor 
expended  on  them  which  enhanced  their  value;1  and 
where  the  timber  was  cut  by  mistake  the  labor  or  money 
expended  may  be  deducted  in  an  action  of  replevin,  but 
when  the  trespass  was  intentional,  the  trespasser  will 
not  be  allowed  anything1  for  the  increased  value;2  and 
if  the  lumber  has  been  transported  to  a  distance,  the 
owner  may  replevin  the  lumber  where  found  without 
any  compensation  for  the  cutting1  and  transportation,  3 
and  this  is  also  the  rule  where  timber  has  been  cut  on 
government  lands,4  but  replevin  will  not  lie  for  timber 
severed  by  a  person  in  adverse  possession  of  the  land.  5 
Trover  will  lie  for  the  wrongful  severance  of  miner- 
als and  the  measure  of  damages  should  be  the  value  of 
the  chattel  as  such  when  first  severed  from  the  realty 
and  becoming  a  chattel  whether  the  person  was  a  tres- 
passer or  not.6  This  rule  finds  support  in  many  states; T 
and  the  same  rule  has  been  held  applicable  to  timber 
cut  from  land8  and  this  is  especially  the  rule  where  the 
timber  was  innocently  cut;9  although  some  courts  fix 
the  value  at  the  time  of  removal.10  Where  the  value  of 


1.  Single  vs.  Schneider,  24  Wis.,  299. 

2.  Heard  vs.  James,  49  Miss.,  245;  Herdic  vs. Young,  55  Pa.,  176. 

3.  Gaskins  vs.  Davis,  115  N.  C.,  85. 

4.  Bly  vs.  United  States,  4  Dill.,  467. 

5.  Anderson  vs.  Kapler,  34  111.,  436. 

6.  Omaha  &  Grant  Smelting  &  Eef.  Co.  vs.  Tabor,  13  Colo.,  41;  5 

L.  B.  A.,  236. 

7.  Oak  Ridge  Coal  Co.  vs.   Rogers.,  108  Pa.,  147-52;   Colemans 

App.,  62  Pa.,  252;  Ross  vs.  Scott,  13  Lea.,  479-8;  Chamber- 
lain vs.  Collison,  45  la.,  429;  Morgan  vs.  Powell,  3  Q.  B., 
278;  Stockbridge  Iron  Co.  vs.  C.  Iron  Works,  102  Mass.,  80; 
Maye  vs.  Tappin,  23  Cal.,  306. 

8.  Gates  vs.  Rifle  Boom  Co.,  70  Mich.,  316. 

9.  Ayers  vs.  Hubbard,  57  Mich.,  322;  Gates  vs.  Rifle  Boom  Co., 

70  Mich.,  316;    Whitney  vs.   Huntington,  37  Minn.,  197; 
Beede  vs.  Lamphrey,  64  N.  H.,  510;  Tilden  vs.  Johnson,  52 
Vt.,  628. 
10.  Skinner  vs.  Pinney,  19  Fla.,  48. 


60  Trover  for  Minerals  Severed. 

the  labor  is  much  more  than  the  value  of  the  property, 
the  value  of  such  labor  must  be  allowed  in  trover  when 
the  severance  was  made  by  mistake. *  In  trover,  if  the 
taking"  was  unintentional  and  was  done  by  mistake,  the 
value  of  the  property  at  the  time  of  conversion  with  an 
allowance  for  the  labor  and  expenses,  but  if  the  conver- 
sion was  willful  and  an  intentional  trespass  on  the  pub- 
lic domain,  the  value  of  the  property  at  the  time  a 
demand  is  made  is  the  true  measure  of  damages;2  but 
the  damages  cannot  exceed  the  value  at  the  time  and 
place  of  sale  where  they  have  been  disposed  of.3  And 
when  an  innocent  person  was  sued  in  trover  the  enhanced 
value  on  account  of  the  labor  on  them  by  the  wrongdoer 
cannot  be  recovered;4  and  when  a  person  dispossess  the 
true  owner,  trover  will  lie  against  such  person  or  the 
person  to  whom  he  may  sell  the  land  or  against  the  pur- 
chaser of  the  severed  property;6  but  the  law  has  also 
been  held  otherwise*  and  it  has  also  been  held  that  trover 
would  not  lie  where  a  person  made  a  lease  of  salt  wells 
and  the  lessee  extracted  petroleum  from  the  salt  well 
and  converted  the  petroleum  to  his  own  use.7  In  tres- 
pass de  bonis  non  the  value  of  the  property  when  severed 
and  the  same  rule  applies  when  the  severance  was  not 
malicious,  though  willful,8  and  the  damages  to  be  re- 

1.  Winchester  vs.  Craig,  33  Mich.,  206. 

2.  The  E.  E.  Bolles  Wooden  Ware  Co.  vs.  U.  S.,  106  U.  S.,  432; 

U.  S.  vs.  Williams,  18  Fed.,  475;  Ely  vs.  United  States,  4 
Dill.,  467;  See  also  Shepard  vs.  Pettit,  30  Minn.,  481. 

3.  Greeley  vs.   Stiltson,  27  Mich.,  153;   Ward  vs.  Carson  Eiver 

Wood  Co.,  13  Nev.,  44. 

4.  Lake  Shore  &  M.  S.  Ry.  vs.  Hutchins,  32  Ohio  St.,  571. 
Parker  vs.  W  &  T.  Ry.  Co.,  81  Ga.,  387. 

5.  Alliance  Trust  Co.  vs.  Nettelton  Hardware  Co.,  74  Miss.,  584- 

36  L.  R.  A.,  155;  Morgan  vs.  Varick,  8  Wed.,  587;  Trubee 
vs.  Miller,  48  Conn.,  347;  Green  vs.  Biddle,  8  Wheat.  (U. 
S.),75. 

6.  Anderson  vs.   Hapler,  34  111.,   436;   Brothers  vs.  Hurdle,  10 

Ired.  L.,  490,  51  Am.  Dec.,  400. 

7.  Kier  vs.  Peterson,  41  Pa.,  357. 

8.  Gushing  vs.  Longsellow,  26  Me.,  306;  Coxe  vs.  England,  65 

Pa.,  222;  Bennett  vs.  Thompson,  35  N.  C.,  148. 
Single  vs.  Schneider,  30  Wis.,  571. 


Partition  of  Oil  and  Gas  Rights.  61 

covered  may  be  the  best  price  which  could  be  obtained 
in  the  market  after  the  severance  until  the  time  of 
bringing  suit,1  and  where  the  trespass  was  willful  or 
through  gross  negligence,  damages  may  be  allowed  to 
prevent  a  repetition  of  the  trespass.2 

In  trespass  quare  clausum  the  value  of  the  property^ 
and  the  diminished  value  of  the  land  is  the  measure  of 
damages  in  some  cases,3  and  also  interest.4 

The  rule  of  damages  is  sometimes  stated  to  be  the 
value  of  the  property  if  the  land  is  not  damaged5  and 
the  increased  value  of  the  property  by  labor  expended 
on  it  is  not  allowed;6  and  where  the  estate  is  in  re- 
mainder, the  value  of  the  reversion,  with  or  without 
the  property,  is  a  proper  way  to  fix  the  damages,7  and 
where  the  property  is  taken  under  a  bona  fide  belief  of 
ownership,  the  value  of  the  property  before  severance 
only  can  be  recovered.8 

Where  the  action  is  statutory  the  measure  of  dam- 
ages is  the  same  as  at  common  law  unless  the  statute 
provides  otherwise,9  and  in  such  cases  the  highest 
market  value.10  A  lessee  of  land  for  the  production  of 
oil  is  not  liable  for  the  value  of  gas  which  flows  from 
the  oil  well  and  is  confined  and  used  by  the  lessee.11 

SEC.  11.  PARTITION — PARTITION  OF  LANDS  HELD 
IN  CO-TENANCY. — The  owner  in  fee  simple  of  lands  may 
have  partition  thereof  when  they,  the  co-tenants,  are 

1.  Webster  vs.  Moe,  35  Wis.,  75. 

2.  Kolb  vs.  Bankhead,  18  Tex.,  232. 

3.  Beede  vs.  Lamphrey,  64  N.  H.,  510;  Miller  vs.  Wellman,  75 

Mich.,  353. 

4.  Longfellow  vs.  Quimby,  33  Me.,  458. 

5.  Thompson  vs.  Moiles,46Mich.,42;  Striegelvs.Moore,55Ia.,  88. 

6.  Foote  vs.  Merrill,  54  N.  H.,  494. 

7.  Hoxsie  vs.  Empire  Lumber  Co.,  41  Minn.,  541. 

8.  Van  Deusen  vs.  Young,  29  N.  J.  L.,  9. 

9.  Skeelesvs.  Starrett,  57  Mich.,  350;  Knissley  vs.  Hire,  2  Ind. 

App.,  86. 

10.  Everett  vs.  Gores,  89  Wis.,  421;  62  N.  W.,  82. 

11.  Wood  County  Petroleum  Co.  vs.  W.  Va.  Transpt.  Co.,  28  W. 

Va.,  210. 


62  Partition  of  Oil  and  Gas  Eights. 

absolute  owners.1  The  owner  of  a  life  estate  and  co- 
tenants  in  remainder  cannot  have  partition  as  the  life 
tenant  and  tenants  in  common  in  remainder  are  not  joint 
owners  of  the  land,  and  a  court  of  equity  cannot  acquire 
jurisdiction  to  make  partition  on  a  petition  of  the  life 
tenant,  and  where  such  partition  was  made  and  the  estate 
divided,  giving  the  life  tenant  part  of  the  estate  in  fee,  it 
is  void,*  but  where  the  life  tenant  is  also  a  tenant  in  com- 
mon, in  remainder  partition  may  be  had  by  the  life  tenant 
of  the  remainder,  when  the  lands  are  chiefly  valuable  for 
mineral  purposes  and  where  the  ownership  is  in  fee.  • 

But  when  a  partition  is  to  be  made  of  the  oil  rights 
beneath  the  surface  independent  of  the  ownership  of  the 
surface  and  the  owners  of  the  oil  rights  are  co-tenants, 
a  very  nice  question  arises  as  to  the  rights  of  the  co- 
owners.  The  right  to  bore  for  oil  given  to  a  person,  his 
heirs  and  assigns,  has  been  held  to  be  a  mere  incorpore- 
al hereditament  and  such  a  right  is  indivisible,  but  if 
the  instrument  of  conveyance  provides  that  the  grantee 
or  grantees  may  transfer  the  whole,  or  any  part  of  the 
right  conveyed,  the  incorporeal  right  becomes  divisible 
by  the  contract  of  the  parties.4  Many  of  the  late  cases 
hold  that  no  person  has  an  ownership  which  is  absolute 
in  oil  and  gas,  though  the  oil  and  gas  may  be  part  and 
parcel  of  his  land,  but  the  extent  of  such  an  owner's 
right  extends  only  to  the  privilege  of  boring  for  the  oil 
and  gas  and  the  protection  of  the  land  against  trespass- 
ers. The  rule  is  the  same  whether  the  person  is  the 
owner  of  the  fee;  or  the  right  to  take  oil  and  gas  is  given 
by  lease;  or  the  right  is  reserved  in  an  instrument  of 
conveyance. B 

1.  Smith  vs.  Runnels,  97  la.,  55;  65  N.  W.,  1002. 

2.  Love  vs.  Blauw,  61  Kan.,  496;  9  Pac.,  1059;  48  L.  R.  A.,  257. 

3.  Williamson  vs.  Jones,  43  W.  Va.,  562. 

4.  Funk  vs.  Haldeman,  53  Pa.,  229. 

5.  Townsend  vs.  State,  147  Ind.,  624;  Indiana  vs.  Ohio  Oil  Co., 

150  Ind.,  21;  Ohio  Oil  Co.  vs.  Indiana,  177  U.  S.,  190;  Man- 
ufacturers Gas  &  Oil  Co.  vs.  Indiana  Natural  Gas  &  Oil 
Co.,  155  Ind.,  461;  57  N.  E.,  912;  50  L.  R.  A.,  768;  Wood 
County  Petroleum  Co.  vs.  W.  Va.  Transportation  Co.,  28 
W.  Va.,  210;  57  Am.  Rep.,  654;  Shepherd  vs.  McCalmont 
Oil  Co.,  38  Hun.,  37;  7  Contra.  Warren  vs.  Westerbrook 
Mfg.  Co.,  88  Me.,  58;  35  L.  R.  A.,  388. 


Partition  of  Oil  and  Gas  Eights.  83 

So  the  right  to  take  oil  or  gas  from  lands  is  but  a 
mere  incorporeal  hereditament  and  consequently  when 
the  court  entertained  a  bill  for  partition  of  oil  and  gas 
beneath  the  surface  and  independent  of  the  surface 
such  a  partition  is  void  because  they  are  incapable  of 
division  or  allotment.1  The  same  rule  has  been  held 
to  apply  to  a  partition  of  waters  independent  of  the  soil 
over  which  they  flow. '  The  rights  of  the  owner  of  oil 
and  gas  lands  to  the  oil  and  gas  beneath  the  surface  are 
somewhat  similar  to  those  of  waters  flowing  through  his 
lands.  There  is  no  property  in  the  waters  of  a  running 
stream,  but  the  owner  of  the  land  over  which  the  stream 
flows  has,  as  incident  to  his  ownership  of  the  land,  a 
property  right  in  the  flow  of  the  water,  or,  in  other 
words,  he  has  a  usufruct  in  the  water  while  the  water 
passes  his  land;8  but  the  property  rights  in  the  water 
are  indivisible  and  proprietors  in  common  must  use  it 
as  an  entire  stream.4  The  same  rules  apply  to  under- 
ground channels  as  apply  to  surface  streams.  In  them 
the  proprietary  rights  are  no  greater  than  streams  flow- 
ing on  the  surface,  hence  the  water  thus  taken  from  a 
well  cannot  be  used  for  extraordinary  purposes  and  an- 
other proprietor's  well  which  has  been  fed  by  the  same 
stream  be  rendered  worthless  and  he  may  enjoin  the  other 
from  using  the  water  in  such  a  manner/  Each  proprietor 
has  an  equal  right  to  the  common  property  and  the  same 
applies  to  oil  and  natural  gas  for  the  state  or  a  private 
person  who  has  oil  and  gas  wells  within  the  territory  has 
a  right  to  enjoin  the  waste  of  oil  or  gas;6  or  the  use  of 

1.  Hall  vs.  Vernon,  47  W.  Va.,  297;  34  S.  E.,  764;  49  L.R.A.,  464. 

2.  McGilvrey  vs.  Evans,  27  Cal..  542;  Brown  vs.  Cooper,  98  la., 

444;  33  L.  R.  A.,  61. 

3.  Druley  vs.  Adam,  102  111.,  193;  Tyler  vs.  Wilkinson,  4  Mason, 

400;  Willis  vs.  Perry,  92  la.,  297;  26  L.  R.  A.,  124. 

4.  Plumleigh  vs.  Dawson,  1  Gilman  (111.),  552;  Canal  Trustees 

vs.  Haven,  11  111.,  554;  Ward  vs.  Ward,  3  Exch.,  748; 
Webb  vs.  Portland  Mfg.  Co.,  3  Sumner  189;  Vanderbergh 
vs.  Van  Bergen,  13  Johns.,  212. 

5.  Willis  vs.  Perry,  92  la.,  297;  26  L.  R.  A.,  124. 

6.  Ohio  Oil  Co.  vs.  Ind.,  177  U.  S.,  190;  Ind.  vs.  Ohio  Oil  Co.,  150 

Ind.,21. 


64  Partition  of  Oil  and  Gas  Eights. 

extraordinary  means  to  take  them  from  the  earth.1  So 
with  oil  and  gas  where  they  are  held  in  cotenancy,  all 
tenants  have  a  right  to  bore  for  oil  and  gas,  but  no  one  has 
a  separate  right  and  when  the  separate  right  does  not 
exist  there  is  nothing  to  partition." 

The  right  to  partition  when  the  minerals  are  solid  has 
been  recognized;3  but  such  a  right  has  also  been  denied 
even  when  the  mines  are  open,4  and  the  only  right  the 
court  has  is  to  order  a  sale.8  The  parties  who  hold  as 
co-tenants  may  agree  that  no  partition  shall  be  made,  or 
the  instrument  which  gives  title  may  provide  that  no 
partition  shall  be  made  and  such  a  provision  is  binding.6 

1.  Manufacturers  Gas  &  Oil  Co.  vs.  Indiana  Nat.  Gas  Co.,  155 

Ind.,461;57N.  E.,  912. 

2.  Hall  vs.  Vernon,  47  W.  Va.,  297. 

3.  Ames   vs.  Ames,  160  111.,  600-1;  Boyston   vs.  Miller,   (U.  S. 

C.  D.  Nev.)  76  Fed.,  50;  Wilson  vs.  Boyle,  95  Tenn.,  290; 
32  S.  W.,  386;  Jones  vs.  Wagner,  66  Pa.  St.,  429;  Merritt 
vs.  Judd,  14  Cal.,  60;  Hughes  vs.  Devlin,  23  Cal.,  502;  Ran- 
kins  Appeal,  2  L.  R.  A.,  429. 

4.  Lenferns  vs.  Henke,  73  111.,  405;  Connant  vs.  Smith,  1  Aik.,  67; 

Adams  vs.  Briggs,  7  Cush.,  361. 

5.  Linferns  vs.  Henke,  73  111.,  405;  Hall  vs.  Vernon,  supra;  Smith 

vs.  Cooley,  65  Cal.,  46;  2  Pac.,  880;  Kemble  vs.  Kemble,  44 
N.  J.  Eq.,454;  HAtl.,733. 

6.  Hunt  vs.  Wright,  47  N.  H.,  396;  Coleman  vs.  Coleman,  19  Pa., 

100;  57  Am.  Dec.,  641;  Cannant  vs.  Smith,  1  Aiken,  67;  57 
Am.  Dec.,  641;  Eberts  vs.  Fisher,  54  Mich.,  294;  Peck  vs. 
Cardwell,  2  Beav.,  137;  Contra  Haenssler  vs.  Mo.  Iron  Co., 
110  Mo.,  188;  19  S.  W.,  75;  16  L.  R.  A.,  220. 


Limitation  Laws,  Adverse  Possession. 


CHAPTER    VI. 

SECTION  1.  NATURE  OP  OIL  AND  GAS. — Owing-  to 
the  peculiar  attributes  of  oil  and  gas  the  same  legal 
principles  which  apply  to  solid  minerals  do  not  apply  to 
oil  and  gas,  as  the  latter  have  a  tendency  to  pass  from 
one  man's  land  and  become  part  of  the  land  of  another; 
and  if  the  adjoining  owner  taps  the  oil  or  gas  reservoir 
and  takes  oil  and  gas  from  the  well,  such  oil  or  gas  is 
his,  though  he  may  have  taken  them  from  the  lands  of 
another,  because  such  owner  has  tapped  the  vein  or  res- 
ervoir which  underlies  both  tracts;1  so  the  precedents 
arising  out  of  ordinary  mining  rights  must  be  applied 
more  with  the  view  of  the  principles  of  law  involved 
than  the  mere  decisions,  consequently  when  applying  the 
rules  which  govern  the  limitations  of  real  actions  the 
general  principles  of  the  limitation  laws  are  not  always 
applicable.  * 

SEC.  2.  POSSESSION  OF  THE  SURFACE  NOT  POSSES- 
SION OF  THE  OIL  AND  GAS. — Where  the  owner  of  lands 
made  a  lease  of  lands  for  the  purpose  of  operating  for 
oil  or  gas  and  the  lessee  was  given  the  right  to  the  pos- 
session of  sufficient  land  for  the  purpose  of  ingress, 
egress,  storage  and  transportation  during  the  time  the 
lease  was  in  force,  and  the  lessee  operated  on  the  lands 
by  sinking  a  gas  well,  but  did  not  use  the  gas  after  the 
well  was  sunk,  but  had  the  well  in  such  a  condition  that 
the  gas  could  be  used  if  the  lessee  so  desired,  and  while 
the  lessee  had  possession  of  the  land  for  operating,  the 

1.  Brown  vs.  Vandergrift,  80  Pa.,  147;  Westmoreland  &  C.  Nat. 

Gas  Co.  vs.  DeWitt,  130  Pa.,  235. 

2.  Westmoreland  &  C.  Nat.  Gas  Co.  vs.  DeWitt,  130  Pa.,  235. 


66  Adverse  Possession  of  Oil  and  Gas  Eights. 

lessor  used  all  the  land  for  farming1  purposes  and  made 
a  second  lease  to  other  persons  for  the  same  purposes, 
the  first  lessee  was  held  to  be  in  possession  of  the  gas 
and  that  the  gas  was  within  his  control  by  means  of  the 
well  and  the  appliances  connected  therewith,  and  that 
the  lessor  who  had  possession  of  the  soil  for  tillage  had 
no  active  possession  of  the  gas  and  the  lessor  had  no 
legal  possession,  for  the  lease  gave  such  possession  to 
the  lessee.1  The  same  rule  in  this  respect  applies  to 
coal  and  solid  minerals  and,  where  the  title  or  estate  in 
the  coal  has  been  severed  from  the  title  to  the  surface, 
such  coal  is  land,  and  the  possession  of  the  surface  of 
the  land  gives  no  possession  of  the  coal  and  acts  of  own- 
ership which  constitute  possession  of  the  mineral  must 
be  distinct  from  the  acts  which  are  exercised  over  the 
surface.  * 

SEC.  3.  POSSESSION  OF  THE  SURFACE  is  NOT  AD- 
VERSE TO  THE  OWNER  OF  THE  GAS  AND  OIL  RIGHTS  IN 
THE  SAME  LAND. — When  the  owner  of  a  tract  of  land 
conveyed  the  same  reserving  "all  mines,  minerals  and 
metals  in  and  under  the  land;"  but,  in  subsequent  con- 
veyances, no  reservations  were  made  in  the  deeds  and 
each  one  of  them  purported  to  convey  absolute  title  to  the 
land  from  the  surface  to  the  center  of  the  earth  and  the 
grantee  set  up  the  seven  years  statute  of  limitation  to 
bar  the  right  of  the  owner  of  the  oil  and  gas  from  taking 
them,  the  court,  however,  held  that  the  minerals  were 
separated  from  the  surface  and  that  each  was  a  separate 
and  distinct  estate  and  that  the  purchasers  under  the 
deeds  acquired  the  lands  subject  to  the  reservations  of 
the  mineral  rights,  and  the  grantees  acquired  only  an 
estate  in  the  surface  and  which  could  be  used  as  all  sur- 
face owners  ordinarily  use  the  surface,  but  that  the  min- 

1.  Westmoreland  &  C.  Nat.  Gas  Co.  vs.  DeWitt,  130  Pa.,  235. 

2.  Catlin  Coal  Co.  vs.  Lloyd,  176  111.,  275;  Same  vs.  Same,  180 

111.,  398;  Tyrwhitt  vs.  Wynne,  2  Barn  &  Add.,  554;  Cullen 
vs.  Rich,  Bull  N.  P.  (Eng.),  102. 


Limitation  Laws.  67 

erals  were  a  separate  and  distinct  estate.1  So  the 
possession  of  the  soil  by  the  owner  for  the  purpose  of 
tillage  gives  him  no  possession  of  the  gas  under  the  sur- 
face or  of  the  other  minerals,  and  consequently  without 
any  further  showing  than  mere  possession  of  the  surface, 
and  without  any  denial  of  the  rights  to  the  minerals, 
the  owner  of  the  surface  does  not  acquire  title  under  the 
seven  years  statute  of  limitation.2  The  same  rule  is 
applied  to  other  minerals  than  oil  and  gas;  and  where 
there  has  been  a  severance  of  the  surface  from  part  or 
all  the  minerals,  each  has  a  separate  and  distinct  estate, 
and  all  the  laws  applicable  to  the  surface  as  land  are 
applicable  to  the  separate  estate  in  the  minerals  and 
among  them  is  the  statute  of  limitations.8 

SEC.  4.  ACQUISITION  OF  MINERAL  RIGHTS  UNDER 
THE  STATUTE  OP  LIMITATIONS.— Where  the  owner  of 
lands  created  a  separate  and  distinct  estate  in  the  min- 
erals by  a  deed  or  by  an  instrument  of  conveyance, 
which  would  be  color  of  title,  in  conveying  the  surface, 
the  grantee  under  such  deed  and  such  grantees  subse- 
quent grantees  may  acquire  title  to  such  minerals  under 
a  statute  providing  that  color  of  title  acquired  in  good 
faith,  payment  of  taxes  on  "vacant  and  unoccupied 
lands"  for  seven  years  is  sufficient  to  give  title;4  but 
where  a  person  occupies  the  surface  for  more  than  seven 
years  with  an  actual  residence  thereon  under  a  deed  and 
a  proper  claim  of  title,  such  person  cannot  defeat  the 
acquisition  of  the  title  to  the  minerals  under  color  of 
title  acquired  in  good  faith  and  the  payment  of  taxes 
thereon  as  vacant  and  unoccupied  lands,  under  a  statute 

1.  Murray  vs.  Allard,  100  Term.,  100;  43  S.  W.,  355;  Stewart  vs. 

Chadwick,  8  la.,  463;  Cadwell  vs.  Fulton,  31  Pa.,  475;  72 
Am.  Dec.,  760. 

2.  Murray  vs.  Allard,  100  Term.,  100;  43  S.  W.,  355;  39  L.  E.  A., 

249. 

3.  Armstrong  vs.  Caldwell,  53  Pa.,  287;  Washburn  Real  P.  Vol. 

2,  p.  377;  Williams  vs.  Gibson,  84  Ala.,  228;  Hartwell  vs. 
Camman,  2  Stack  Ch.,  128;  Caldwell  vs.  Copeland,  37  Pa., 
427. 

4.  Catlin  Coal  Co.  vs.  Lloyd,  176  111.,  275. 


68  Adverse  Entry  Before  Severance. 

providing"  that  any  person  who  occupied  land  for  seven 
years  with  an  actual  residence  thereon,  under  a  deed 
connected  by  a  legal  or  equitable  chain  of  title  from 
the  government  of  the  United  States,  or  the  state, 
etc.,  where  the  deed  which  gave  color  of  title  pur- 
ported  to  create  separate  estates  in  the  lands,  and  that 
the  owner  of  the  surface  did  not  have  possession  of  the 
minerals  with  a  residence  on  such  estate  as  required  by 
statute,1  so  when  title  by  adverse  possession  is  ac- 
quired by  possession  alone,  an  actual  entry  upon  the 
minerals  must  be  made  where  they  have  been  separated 
from  the  surface,  and  the  claimant  must  maintain  his  pos- 
session within  the  limits  of  the  mineral  estate  for  the 
requisite  period  of  time  in  an  open,  notorious,  exclusive 
and  continuous  manner. 2 

A  secret  entry  is  not  sufficient,  and  such  an  entry 
will  confer  no  rights  on  the  intruder,  as  his  acts  must  be 
such  so  as  to  apprise  the  rightful  owner  of  the  entry. 
In  other  words,  the  intruder  must  keep  his  flag  flying  so 
that  the  true  owner  may  be  warned  of  the  entry. 8 

SEC.  5.  AN  ADVERSE  ENTRY  BEFORE  THE  SEVER- 
ANCE OP  THE  MINERALS  FROM  THE  SURFACE  WILL  GIVE 
TITLE. — But  where  a  person  enters  upon  the  surface  of 
land  under  the  claim  of  ownership  and  while  such  person 
is  so  in  possession,  where  the  rightful  owner  makes  a  con- 
veyance of  the  mineral  coal, the  conveyance  so  made  does 
not  affect  the  rights  of  the  person  in  adverse  possession 
of  the  surface  as  the  making  of  the  deed  and  the  record- 
ing of  the  same  is  not  equivalent  to  an  entry;  and  where 
such  person  holds  possession  of  the  surface  for  the  requis- 
ite period  of  the  statute  of  limitations,  his  title  is  perfect, 
not  only  to  the  surface,  but  also  to  the  mineral  coal. 4  So 
also  where  a  person  enters  upon  land  under  a  claim  of 
title  to  the  entire  fee  and  proceeds  to  bore  for  oil  and 

1.  Catlin  Coal  Co.  vs.  Lloyd,  180  111.,  398. 

2.  Delaware  &  Hudson  Canal  Co.  vs.  Hughes,  183  Pa.,  66;  Kings- 

ley  vs.  Hillside  Coal  &  I.  Co.,  144  P.  Pa.,  613. 

3.  Plummer  vs.  Hillside  Iron  &  Coal  Co.,  160  Pa.,  483. 

4.  Finegan  vs.  Pennsylvania  Transit  Co.,  5  Pa.  Super.  Ct.,  128; 

28  Pitts  L.  J.  N.  S.,68. 


Possession  of  Surface.  69 

gas  and  the  claim  of  such  person  dates  back  prior  to  the 
time  when  the  right  of  entry  of  the  claimant  had  accrued, 
such  person  will  not  be  enjoined  from  opening  gas  and 
oil  wells  thereon;  as  the  only  right  that  the  claimants 
have  is  one  in  ejectment.1 

SEC.  6.  POSSESSION  OF  SURFACE  BY  THE  OWNER 
OF  THE  MINERALS  UNDER  A  RESERVATION  is  NOT  AD- 
VERSE TO  THE  OWNER  OF  THE  SURFACE.— Where  the 
owner  of  land  in  fee  conveyed  the  same  to  a  third  person, 
but  reserved  the  mineral  rights  in  the  lands  and,  after- 
wards such  owner  of  the  mineral  rights  began  operations 
for  the  production  of  oil  and  occupied  such  parts  of  the 
land  as  was  necessary  for  the  production,  storage  and 
removal  of  the  oils,  such  person  can  not  claim  title  to 
the  lands  so  occupied,  particularly  when  he  claimed  his 
occupation  was  only  temporary  and  paid  the  taxes  on  the 
property  placed  on  the  premises  for  such  operations  and 
storage  of  oil."  So  where  an  oil  operator  places  struc- 
tures on  lands  and  such  structures  are  destroyed  and 
carried  away  by  a  flood,  before  the  statute  of  limitations 
had  run,  and  other  structures  were  built  on  a  different 
part  of  the  land,  the  adverse  claimant  did  not  hold  the 
land  continuously,  so  as  to  bar  the  rightful  owner. 3 

SEC.  7.  RECEIVERS  FOR  LAND  WHERE  TITLE  is  IN 
DISPUTE  UNDER  A  CLAIM  OF  ADVERSE  POSSESSION  AND 
IN  OTHER  CASES— INJUNCTIONS.— Courts  of  equity  exer- 
cise the  right  to  appoint  receivers  when  the  title  to  oil 
and  gas  lands  is  in  dispute,  so  that  the  property  may  not 
be  wasted^during  the  litigation,  or  where  the  persons  ex- 
tricating the  oil  and  gas  are  insolvent.4  So  when  a 
stranger  invades  the  possession  of  another,  who  has  an 
exclusive  right  to  bore  for  oil  and  gas  and  starts  the 
erection  of  a  derrick  to  bore  for  oil  and  gas,  and  where 
such  boring  of  wells  would  injure  the  wells  of  the  lessee, 
the  stranger  will  be  enjoined  from  sinking  a  well  and 

1.  Erskine  vs.  Forest  Oil  Co.  (C.  C.  W.  D.  Pa.),  80  Fed.  Rep.,  583. 

2.  Dietz  vs.  Mission  Transfer  Co.,  —  Cal.  — ;  25  P.,  428. 

3.  Dietz  vs.  Mission  Transfer  Co.,  —  Cal.  — ;  25  Pac.,  423. 

4.  Nevada  Sierra  Oil  Co.  vs.  Home  Oil  Co.,  98  Fed.  E.,  673. 


70  Accounting  for  Mineral. 

from  disturbing  the  lessee  in  his  possession.1  But  when 
persons  in  possession  of  land  under  a  claim  of  ownership 
which  dates  back  to  a  time  prior  to  the  right  of  entry  of 
the  parties  who  are  out  of  possession  and  those  who 
claim  adversely  are  solvent  and  the  land  would  be 
drained  by  oil  operation,  on  other  lands,  a  court  of 
equity  will  not  disturb  the  adverse  claimant  in  possession 
and  will  send  the  parties  to  a  court  of  law  to  establish 
their  title  to  the  land;*  and  a  court  of  equity  will  not 
entertain  a  bill  to  quiet  title  where  the  bill  sets  up  the 
ownership  in  the  complainant  but  admits  the  defendants 
are  in  possession  and  have  drilled  oil  wells  and  removed 
oil  from  the  premises  and  are  sinking  more  wells,  as  the 
bill  is  in  effect  a  common  law  action  of  ejectment.3 

SEC.  9.  ACCOUNTING  FOR  MINERALS  TAKEN  FROM 
LANDS. — The  mere  delay  short  of  the  period  of  the  stat- 
ute of  limitations  will  not  bar  an  action  for  an  account- 
ing where  the  parties  are  claiming  adversely  under  an 
oil  and  gas  lease  to  the  same  premises;4  and  where  the 
lessor  delays  in  bringing  an  action  against  the  lessee  of 
oil  and  gas  lands,  it  will  not  bar  a  recovery  when  such 
action  is  not  barred  by  the  statute  of  limitations;6  and 
when  a  person  is  in  sole  management  of  a  mining  part- 
nership and  when  the  business  is  continued  after  the 
death  of  one  of  the  partners,  the  widow  is  not  barred  of 
an  accounting  when  the  managing  partner  recognizes 
her  interest  and  makes  her  understand  that  all  will  be 
accounted  for,  and  also,  in  such  case,  there  is  an  implied 
trust  existing  and  also  the  statute  does  not  run  until  the 
managing  partner  fulfilled  all  that  was  intended  to  be 
done  by  him  when  the  management  was  taken. 6  Where 
minerals  are  secretly  extracted  from  another's  lands, 
through  shafts  on  adjoining  lands,  the  cause  of  action 
does  not  arise  until  the  trespass  is  discovered.7 

1.  Indianapolis  Nat.  Gas  Co.  vs.  Kibby,  135  Ind.,  357;  35N.E.  392. 

2.  Erskine  vs.  Forest  Oil  Co.,  80  Fed.  R.,  583. 

3.  California  Oil  &  Gas  Co.  vs.  Miller,  96  Fed.  R.,  12. 

4.  Akin  vs.  Marshall  Oil  Co.,  188  Pa.,  614;  41  Atl.,  748. 

5.  Ahrns  vs.  Chartiers  Valley  Gas  Co.,  188  Pa.,  249;  41  Atl.,  739. 

6.  Thomas  vs.  Hurst  (C.  C.  W.  D.  Mo.),  73  Fed.  R.,  372. 

7.  Lewey  vs.  H.  C.  Prick  Coke  Co.,  166  Pa.,  536;  28  L.  R.  A.,  283. 


FIXTURES. 


CHAPTER  VII. 

SEC.  1.  WHAT  ARE  TRADE  FIXTURES. — Trade  fix- 
tures are  chattels  placed  upon  the  lands  by  a  person  so 
that  such  person  may  be  able  to  carry  on  the  business 
for  which  the  land  is  used.  * 

When  such  questions  arise  between  landlord  and  ten- 
ant and  such  fixtures  were  placed  upon  the  premises  for 
the  purpose  of  trade,  a  greater  latitude  is  allowed  the 
tenant,  so  that  all  fixtures  set  up  for  the  better  enjoy- 
ment of  trade  are,  as  a  general  rule,  retained  and  may  be 
removed  by  the  tenant.  The  reason  for  the  rule  is  that 
when  the  owner  or  mortgagor  makes  the  improvements 
the  purpose  is  to  enhance  the  value  of  the  premises  and 
to  be  permanent,  but  when  the  tenant  makes  the  improve- 
ments it  is  only  for  a  temporary  purpose  and  not  with 
the  view  of  making  such  fixtures  a  part  of  the  land.2 

SEC.  2.     RULES  RELATING  TO  FIXTURES. 

(1)  Intention. 

Intention  of  parties  as  to  whether  the  chattel  shall 
become  permanently  attached  to  the  freehold  is  the 
principal  criterion  to  determine  whether  an  article  re- 
mains a  chattel  or  becomes  a  fixture;8  and  also  the  char- 

1.  Overman  vs.  Sasser,  107  N.  C.,  432;   Lawton  vs.  Lawton,  3 

Aik.,13. 

2.  Elwes  vs.  Maw,  3  East,  38;  2  Smith  Lead.  Cases,  228;  Moore 

vs.  Valentine,  77  N.  C.,  188;  Binkley  vs.  Forkner,  117 
Ind.,  176. 

3.  Dudley  vs.  Creighton,  67  Md.,  44;  Binkley  vs.  Forkner,  117 

Ind.,  176;  Taylor  vs.  Watkins,  62  Ind.,  511;  Donald  vs. 
Shephard,  25  Kas.,  112;  Morris  vs.  French,  106  Mass.,  326; 
Penn.  Mutual  L.  Ins.  Co.  vs.  Semple,  38  N.  J.  Eq.,  575; 
Roddy  vs.  Brick,  42  N.  J.  Eq.,  218;  Foote  vs.  Garch,  96  N.C., 
625;  Van  Ness  vs.  Packard,  2  Peter.,  137;  Wyrick  vs.  Bell, 
3  Dak.,  284;  Vail  vs.  Weaver,  132  Pa.,  363;  Morriss  App., 
88  Pa.,  368. 


72  Intention  Not  to  Annex. 

acter  of  the  act  by  which  the  structure  is  put  in  its  place, 
and  the  policy  of  the  law  connected  with  the  purpose.1 

(2)  Annexation. 

The  chief  element  to  be  considered  in  case  of  annex- 
ation is  the  mode  of  annexation  and  whether  it  can  be 
removed  without  a  subsequent  injury  to  the  real  estate.2 

(3)  The  adaptation  of  the  use  of  the  fixtures  to  the 
realty  with  which  the  fixtures  are  connected.3 

SEC.  3.  INTENTION  NOT  TO  ANNEX. — Where  a  rail- 
road company  digs  a  well  on  what  it  supposes  to  be  its 
right  of  way  and  places  a  pump  thereon,  and  builds  a 
foundation  for  a  boiler  and  places  the  boiler  on  the  foun- 
dation for  the  purpose  of  operating  the  pump  to  draw 
water  from  the  well,  such  pump  and  machinery  does  not 
pass  to  the  owner  of  the  land  when  the  title  of  the  rail- 
road company  proves  defective,  because  the  pump  and 
the  boiler  were  not  placed  there  with  the  intention  to 
enhance  the  value  of  the  real  estate  where  they  were 
placed,  but  simply  to  furnish  water  to  the  railroad  com- 
pany's passing  trains.4  And  where  a  person,  a  licensee 
for  mining  purposes,  placed  machines  in  a  building,  they 
do  not  become  fixtures.5  So  when  a  person  who  holds  a 
lease  on  land  for  the  production  of  oil  and  gas  and  no 
oil  or  gas  is  found  by  the  lessee,  the  lessee  has  a  right 
to  take  the  casings  out  of  wells  which  were  sunk  on 
the  land  by  the  lessee  and  which  were  nonproductive.6 

SEC.  4.  RIGHT  TO  REMOVE  FIXTURES  RESERVED  IN 
LEASE — WHEN  LOST  BY  DELAY. — Where  the  lessee  takes 
a  demise  of  land  for  the  purpose  of  mining  coal  thereon 
and  places  structures  and  appliances  on  the  premises  to 
carry  into  effect  the  lease,  and  the  lease  contained  a  cov 

1.  Binkley  vs.  Forkner,  117  Ind.,  176. 

2.  Callamore  vs.  Gillis,  149  Mass.,  578. 

3.  Binkley  vs.  Forkner,  117  Ind.,  176. 

4.  Atchison  T.  &.  St.  Fe  Ry.  vs.  Morgan,  42  Kan.,  23. 

5.  Springfield  Foundry  &  Machine  Co.  vs.  Cole,  130  Mo.,  1  (31 

S.  W.,922). 

6.  Siler  vs.  Globe  Window  Glass  Co.,  21  Ohio  C.  C.,  284. 


Removal  of  Fixtures  by  Tenant.  73 

enant  that  the  lessee  could  remove  such  structure  and 
appliances  on  the  termination  of  the  lease,  the  lessee 
does  not  lose  his  right  to  remove  such  structures  and 
appliances  because  the  lessee  takes  an  extension  of  the 
lease.  So  where  the  lease  recites  that  the  lessee  shall 
deliver  the  mines  and  mining"  property  on  the  termina- 
tion of  the  lease,  the  lessee  does  not  lose  the  right  to 
remove  them  because  they  are  not  removed  immediately 
on  the  termination  of  the  lease,  when  the  lessee  has 
been  forcibly  dispossessed  before  an  expiration  of  an 
extension  of  the  lease,  and  a  second  lease  is  made  while 
a  suit  is  pending  to  recover  possession,  in  which  suit  the 
lessee  was  successful,  though  the  lease  is  thereafter  sur- 
rendered, and  the  fixtures  are  real  estate  as  to  the  sec- 
ond lessee,  but  the  lessee  under  the  first  lease  had  a 
right  to  remove  the  fixtures  on  the  termination  of  the 
lease.1  But  when  a  person  takes  a  lease  for  the  pur- 
pose of  operating  for  oil  and  gas  for  three  years  and  as 
much  longer  as  oil  and  gas  are  found  in  paying  quanti- 
ties and  aright  to  remove  all  fixtures  at  "any  time,"  such 
fixtures  must  be  removed  within  a  reasonable  time,  and 
by  waiting  four  years  after  ceasing  operations  the  right  to 
remove  them  is  lost;'  though  the  lessee  would  have  a 
right  to  remove  the  casing  before  the  expiration  of  the 
lease  when  the  lease  was  silent  as  to  the  right  to  remove 
fixtures.8  The  casing  in  an  oil  and  gas  well  as  well  as 
the  derrick,  machinery  and  all  appliances  used  in  drill- 
ing the  well  are  trade  fixtures  and  may  be  removed  by 
the  lessee  during  the  term  or  within  a  reasonable  time 
thereafter.4 

SEC.  5.  REMOVAL  OF  FIXTURES  AFTER  A  JUDICIAL 
DECLARATION  OF  FORFEITURE  —  RIGHT  OF  ACTION 
AGAINST  LESSOR  FOR  CONVERSION. — Where  a  lease  pro- 
vided that  the  lessee  could  remove  the  fixtures  used  in 
operating  for  oil  and  gas  at  any  time  after  the  termina- 

1.  Wright  vs.  McDonnell,  —  Tex.,  — ;  30  S.  W.,  907. 

2.  Shelters  vs.  Shivers,  171  Pa.,  569;  33  All.,  95. 

3.  Siler  vs.  Globe  Window  Glass  Co.,  21  Ohio  C.  C.,  284. 

4.  Shellers  vs.  Shivers,  171  Pa.,  569;  33  Atl.,  95. 


74  After  Forfeiture. 

tion  of  the  lease  and  a  question  arises  between  the  parties 
as  to  whether  the  lease  has  been  terminated  and  the  con- 
troversy is  taken  into  the  courts  and  the  action  is  decided 
against  the  lessee  and  the  lease  is  terminated,  the  statute 
of  limitations  does  not  run  against  the  lessee  while  the  con- 
troversy is  pending  in  court,  and  the  lessee  has  a  right  to 
remove  such  fixtures  on  the  termination  of  the  suit.1 
The  lessor  is  liable  to  the  lessee  for  damages  for  refusal 
to  permit  lessee  to  remove  fixtures.8  So  where  the  lease 
provided  the  lessee  may  remove  the  fixtures  placed  on 
the  premises  for  the  purpose  of  boring  for  oil  and  gas  and 
the  lessee  failed  to  develop  the  land  as  was  provided  in  the 
lease  and  the  lessor  seized  the  fixtures  of  the  lessee,  the 
lessor  is  liable  to  the  lessee  for  the  value  of  the  trade  fix- 
tures, since  the  covenant  on  the  part  of  the  lessee  to  devel- 
op the  land,  and  the  covenant  on  the  part  of  the  lessor  that 
lessee  could  remove  the  trade  fixtures  on  the  termination 
of  the  lease  are  independent  of  each  other  and  the  less- 
or's remedy  is  an  action  on  the  lease  for  a  breach  of  cov- 
enant. 8 

1.  Sattler  vs.  Apperman,  30  Pitts  L.  J.  N.  S.,  205. 

2.  Sattler  vs.  Apperman,  30  Pitts  L.  J.  N.  S.,  205. 

3.  Patterson  vs.  Hausbeck,  8  Pa.  Super.  Ct.,  36. 


TAXATION. 


CHAPTER  VIII. 

SECTION  1.  MINERALS  AS  LAND. — "One  person  may 
be  taxed  as  the  owner  of  the  fee  of  the  land,  another  for 
the  trees,  buildings  and  other  structures  thereon,  and 
another  for  the  minerals  and  quarries  therein"  was  held 
under  a  statute  which  provided  that  "land"  is  "to  include 
the  land  itself,  including  land  and  water;  all  buildings 
and  other  articles  erected  upon  or  affixed  to  the  same; 
and  trees  and  underwood  growing  thereon;  and  all  mines, 
minerals  and  fossils  in  and  under  the  same."  And  under 
such  a  statute  a  pier  built  by  a  third  person  on  land 
belonging  to  the  city  was  land,  and  taxable  as  such.  * 
So  was  a  street  car  line  laid  on  the  streets  of  a  city  held 
to  be  land  under  the  statute,1  and  as  between  the  parties* 
there  where  no  restrictions  to  make  the  building  on  the 
lands  of  another  personal  property,  but  as  for  taxation 
such  will  be  taxed  as  land.3  So  where  the  owner  of  land 
conveyed  the  same  but  reserved  all  the  mineral  coal  and 
the  right  to  mine  the  same  under  the  land,  the  coal  is 
taxable  as  land,  though  no  mine  was  open  and  there  was 
no  proof  that  coal  existed  under  the  land,  since  these 
were  not  material,  as  the  reservation  itself  was  a  prop- 
erty right  and  taxable  as  real  estate  under  a  constitution 
providing  that  "the  General  Assembly  should  provide 
such  revenue  as  may  be  needful,  by  levying  a  tax  by 
valuation,  so  that  every  person  or  corporation  shall  pay 
tax  in  proportion  to  his,  her  or  its  property"  and  under  a 
statute  providing  that  when  the  owner  of  land  shall  con 

1.  Smith  vs.  Mayor,  68  N.  Y.,  552. 

2.  People  vs.  Cassity,  46  N.  Y.,  46. 

3.  People  vs.  Brooklyn  Board  of  Assessors,  93  N.  Y.,  308. 


76  Oil  and  Gas  Real  Estate. 

vey  by  deed  or  lease,  any  mining  right  therein,  such  con- 
veyance shall  be  considered  as  so  separating  such  right 
from  the  land  that  the  same  shall  be  taxed  separately 
and  any  sale  of  land  for  taxes  or  assessments  shall  not 
include  or  affect  such  mining  right. *  So  under  a  statute 
providing  that,  "In  valuing  any  real  property  on  which 
there  is  a  coal  or  other  mine,  or  stone  or  other  quarry,  the 
same  shall  be  valued  at  such  a  price  as  such  property 
including  the  mine  or  quarry,  would  sell  at  a  fair  volun- 
tary sale'for  cash,"  the  coal  was  held  to  be  taxable  as  land 
and  the  section  above  referred  to  did  not  prevent  the  sev- 
erance of  the  coal  from  the  remainder  of  the  fee  for  the 
purposes  of  taxation  where  the  coal  rights  were  sepa- 
rated from  the  fee  by  the  party,  and  that  such  rights 
acquired  in  the  coal  were  not  personal  property  until 
severed.2  So  a  lease  of  coal  with  the  right  to  mine  the 
same  is  taxable  against  lessee  as  real  estate. 8 

SEC.  2.  TAXES  ON  OIL  AND  GAS  RIGHTS  IN  LANDS. 
— Where  the  owner  of  lands  separates  the  oil  and  gas 
rights  from  the  fee  and  conveys  them  in  fee  to  a  third 
person  upon  condition  that  the  grantee  should  pay  a 
specified  sum  of  money  to  the  grantor  within  a  certain 
time  after  the  completion  of  a  well  on  the  land  and  in 
case  the  money  was  not  paid  within  the  time  specified 
the  grant  would  be  absolutely  null  and  void,  the  right 
thus  given  to  the  grantee  is  taxable  as  real  estate  sepa- 
rate from  the  fee  under  the  W.  Va.  statute,  regulating 
the  taxation  of  real  property,  providing  that  the  person 
who  by  himself  or  tenant  has  the  freehold  in  his  posses- 
sion, whether  in  fee  or  for  life,  shall  be  deemed  the  own- 
er for  the  purposes  of  taxation.  And  the  estate  thus 
conveyed  is  liable  to  be  forfeited  for  the  non-payment  of 
taxes,  but  when  such  a  right  is  not  separated  from  the 
fee  by  the  assessor  and  the  owner  of  the  land  pays  the 

1.  In  Re  Major,  134111.,  19. 

2.  Consolidated  Coal  Co.  vs.  Baker,  135  111.,  545. 

3.  Sanderson  vs.  Scranton,  105  Pa.,  469;  Logan  vs.  Washington 

Co.,  29  Pa.,  374;  Short  vs.  Com.,  15  Ky.  L.  R.,  613;   23 
S.  W.,367. 


Not  Taxable  as  Personality.  77 

taxes  on  the  whole  land,  the  payment  saves  the  right  to 
oil  and  gas  conveyed  from  forfeiture.1  So  the  pipes 
used  by  a  gas  company  for  the  transportation  of  gas  is 
real  estate  and  should  be  taxed  as  such  in  the  taxing 
district  where  they  are  located. 2 

SEC.  3.  RIGHT  TO  PRODUCE  OIL  AND  GAS  NOT 
TAXABLE  AS  PERSONAL  PROPERTY. — Where  the  owner 
of  property  containing  oil  and  gas  leases  the  same  to  a 
third  person  who  has  the  right  to  put  down  wells  and, 
on  the  production  of  oil,  the  lessee  is  to  pay  one-eighth 
of  the  oil  produced  to  the  lessor,  as  a  royalty,  and  such 
prospective  production  is  assessed  against  the  lessee,  as 
personal  property,  for  a  given  year,  such  assessment  is 
void,  because  oil  and  gas  in  the  ground  are  part  of  the 
real  estate  to  which  they  are  attached  for  the  time 
being,  and  though  the  lessee  may  drill  for  oil  and  gas 
among  the  rocks,  such  oil  and  gas  remain  real  estate 
until  they  are  taken  from  the  ground  to  the  surface;  and 
the  ownership  remains  in  the  lessor  until  they  are  taken 
from  the  ground  to  the  surface  and  then  seven-eighths  of 
the  oil  becomes  the  property  of  the  lessee  and  one- 
eighth  remains  in  the  lessor;  and  even  though  the  wells 
were  drilled  at  the  time  the  assessment  was  made,  such 
wells  did  not  have  the  effect  of  converting  the  oil  or  gas  in 
the  ground  into  personal  property,  as  they  were  but  mere 
conduits  through  which  the  oil  or  gas  may  pass  which 
was  in  and  among  the  rocks  as  they  always  existed  in  a 
state  of  nature. 3  The  assessment  was  void  also  because 
the  oil  had  not  been  produced  when  the  assessment  was 
made  and  was  a  mere  conjecture  whether  the  lessee 
would  produce  oil  or  not.4  Where  also  the  lessee  ac- 
quires the  right  to  drill  for  oil  and  gas  for  a  specified 
time  and  is  to  pay  a  certain  royalty  to  the  lessor  and 
with  a  provision  that  the  lessee  will  sink  wells  or  pay  a 

1.  State  vs.  Low,  46  W.  Va.,  451;  33  S.  E.,  271. 

2.  Consumers  Gas  Co.  vs.  Toronto,  27  Canada  (S.  C.),  453. 

3.  Carter  vs.  County  Court  of  Tyler  Co.,  45  W.  Va.,  806;  32  S.  E., 

216;  43  L.  E.  A.,  725. 

4.  Carter  vs.  County  Court  of  Tyler  Co.,  45  W.  Va.,  806. 


78  Fixtures  Personal  Property. 

royalty  or  surrender  the  lease,  such  a  right  is  not  tax- 
able against  the  lessee  under  a  statute  providing  for  the 
taxation  of  minerals  in  place  the  same  as  land,  as  such 
minerals  cannot  be  taxed  against  a  person  unless  they 
are  owned  in  fee;1  and  so  an  interest  acquired  under  an 
oil  and  gas  lease  for  a  term  of  years  is  not  such  an  inter- 
est which  requires  the  separation  of  the  interest  acquired 
under  the  lease  from  the  fee  but  the  whole  estate  is  to 
be  taxed  against  the  owner  of  the  land  where  no  statute 
provides  that  the  right  under  the  lease  shall  be  taxed 
against  the  lessee.* 

SEC.  4.  FIXTURES  TAXED  AS  PERSONAL  PROPERTY 
— GAS  MAINS. — Uuder  a  statute  providing  that  the  words 
personal  property  used  in  a  law  regulating  taxation 
shall  include  all  fixtures  attached  to  land,  if  not  included 
in  the  valuation  of  such  land  entered  upon  the  proper 
land  book,  all  appliances,  such  as  pumpsj  boilers,  tanks, 
etc.,  used  in  taking  oil  from  land  by  a  lessee  is  taxable 
as  personal  property.3  The  legislature  has  the  power 
for  the  purpose  of  taxation,  to  classify  permanent  fix- 
tures, which  at  common  law  are  real  estate,  as  personal 
property,  and  the  owner  of  such  property  can  not  com- 
plain.4 So  the  term  "land,"  which  may  include  build- 
ings, trees,  mines,  etc.,  as  used  in  a  statute  in  regulating 
taxation,  does  not  include  gas  mains  laid  on  a  public 
street  so  as  to  be  taxable  as  real  estate;5  nor  are  such 
mains  fixtures.6  When  gas  mains  are  laid  on  a  street 
with  the  permission  of  the  city  authorities,  such  mains 
are  part  of  the  plant  and  are  personal  property.7  So 
also,  when  a  water  company  builds  mains  through  a  city 
from  its  plant  and  furnishes  water  to  the  city  and  also 

1.  Jones  vs.  Wood,  2  Ohio  Dec.,  75. 

2.  Moore's  App.,  4  Pa.  Dist.  R.,  703. 

3.  Carter  vs.  County  Court  of  Tyler  Co.,  45  W.  Va.,  806. 

4.  Johnson  vs.  Roberts,  102  111.,  655. 

5.  People  vs.  Brooklyn  Board  of  Assessors,  39  N.  Y.,  81. 

6.  People  vs.  Brooklyn  Board  of  Assessors,  39  N.  Y.,  81. 

7.  Memphis  Gas  Light  Co.  vs.  State,  6  Coldw.  (Tenn.),  310;  98 

Am.  Dec.,  452. 


Taxation  of  Gas  Mains.  79 

to  its  inhabitants  through  such  mains,  and  has  a  number 
of  water  plugs  standing  about  two  feet  above  the  sur- 
face and  connected  with  such  mains,  such  mains  and 
water  plugs  are  personal  property  and  are  taxable  as 
such. 1 

SEC.  5.  GAS  MAINS  AND  PIPE  LINES — WHEN  TAX- 
ABLE AS  REAL  ESTATE. — But  where  a  pipe  line  company 
constructs  its  line  of  pipe  over  the  lands  of  another} 
such  pipe  line  is  taxable  as  real  estate,  though  the  own- 
er uses  the  surface  of  the  land.2  And  where  the  question 
is  to  be  determined  on  the  principles  of  the  common  law 
and  the  statute  regulating  taxation  is  silent  as  to  the 
mode  of  taxation,  the  gas  mains  are  appurtenant  to  the 
lots  on  which  the  main  plant  is  situated  and  are  taxable 
as  real  estate,8  and  where  a  city  levies  a  tax  on  the  pipes 
of  a  gas  company,  under  a  statute  authorizing  a  tax  on 
those  who  hold  or  occupy  the  street,  and  the  tax  was 
levied  on  them  as  real  estate  and  the  same  was  held 
valid.4  So  where  under  a  statute  which  provided,  "that 
taxes  shall  be  assessed  in  the  township  where  the  land 
lies,  to  the  owner  or  person  in  possession  thereof,  and 
the  words  'real  estate'  for  the  purpose  of  taxation  shall 
include  all  lands  and  buildings  erected  or  affixed  to  the 
same  and  all  tenements  and  hereditaments  connected 
therewith  and  all  rights  thereto  and  interest  therein," 
water  mains  and  pipes  of  a  water  company  were  to  be 
assessed  in  the  district  where  they  were  located,  as  real 
estate,  to  the  person  or  company  owning  them.  "The 
idea,"  said  the  court,  "that  they  may  be  considered  ap- 
purtenances to  the  place  of  supply  and  taxable  there  is  un- 
tenable. There  is  no  principle  upon  which  it  can  rest."^  So 

1.  Shelbyville  Water  Co.  vs.  People,  140  Ills.,  645;  16  L.  R.  A., 

505. 

2.  Tide  Water  Pipe  Line  Co.  vs.  Berry,  53  N.  J.  L.,  212;  Same, 

52  N.  J.  L.,308. 

3.  Capital  City  Gas  Light  Co.  vs.  Charter  Oak  Ins,  Co.,  51  la.,  31; 

Providence  Gas  Co.  vs.  Thurber,  2  R.  I.,  15. 

4.  Providence  Gas  Co.  vs.  Thurber,  2  R.  I.,  15. 

5.  Paris  vs.  Norway  Water  Co.,  85  Me.,  33;  also,  Rex  vs.  Bath, 

14  East,  610;    Rex  vs.  Brighton  Gas  Light  &  Coke  Co., 
5  Bar.  &C.,466. 


80  Gas  Main  as  an  Appurtenance. 

pipe  lines  in  a  street  for  the  distribution  of  natural  gas 
are  taxable  as  real  estate. *• 

SEC.  6.  GAS  MAINS  APPURTENANCES  OF  THE  MAIN 
PLANT  AND  ARE  TAXABLE  AS  PART  OF  THE  PLANT  WHERE 
SUCH  PLANT  is  SITUATED. — There  is  a  certain  line  of 
authorities  which  hold  that  gas  mains  are  appurtenances 
of  the  ground  or  land  where  the  main  plant  is  situated 
and  that  such  plant  being  real  estate,  is  taxable  as  such 
and  the  mains  and  pipes  for  the  conveyance  of  the  gas 
are  taxable  as  part  and  parcel  of  such  real  estate.8  So 
when  the  pipes  extend  into  another  township,  the  pipes 
so  extended  are  taxable  in  the  township  where  the  plant 
is  situated. 3  And  the  same  rule  applies  when  a  water 
company  has  an  easement  to  flow  land,  such  an  easement 
is  taxable  as  part  of  the  water  power. 4  So  where  a  water 
company  built  a  water  works  to  supply  water  to  a  city 
and  its  inhabitants  on  land  which  was  to  be  occupied  by 
the  company  at  its  pleasure,  the  water  works  were  held 
to  be  real  estate  and  the  water  mains  and  pipes  were 
appurtenances  of  the  main  plant  and  all  taxable  as  real 
estate  where  the  plant  was  situated.* 

SEC.  7.  WELLS,  MAINS,  PIPES  AND  OTHER  APPLI- 
ANCES TAXABLE  AS  PART  OF  THE  FRANCHISE. — Oil  and 
gas  wells,  mains  and  pipes  which  belong  to  a  corpora- 
tion for  the  transportation  and  supply  of  natural  gas  and 
oil  and  all  the  lands  necessarily  connected  therewith  are 
not  taxed  separately  in  same  jurisdictions,  but  the  cor- 
porate stock  is  taxed  and  all  property  necessary  to  the 
exercise  of  its  corporate  franchise  is  not  taxed,  and  un- 
der the  law  the  local  authorities  have  no  authority  to 
impose  taxes  on  the  local  property.  Thus,  boilers,  en- 
gines and  derricks,  which  are  used  for  the  transportation 
of  oil  and  to  facilitate  the  production  thereof,  are  not 

1.  People  vs.  Martin,  48  Hun.,  193. 

2.  Capital  Gas  Light  Co.  vs;  Charter  Oak  Ins.  Co.,  51  la.,  31;  50 

N.W.,  579. 

3.  Be  Des  Moines  Water  Co.,  48  la.,  324. 

4.  Fall  River  vs.  Bristol  Co.,  Com.,  125  Mass.,  567. 

5.  Oskaloosa  Water  Co.  vs.  Board,  84  la.,  407;  15  L.  R.  A.,  296. 


Taxation  of  Capital  Stock.  81 

subject  to  local  taxes;1  and  a  gas  company  organized 
under  the  Pennsylvania  Act  of  1883,  for  the  production, 
storage  and  transportation  and  supply  of  natural  gas  to 
the  public  is  a  public  corporation  and  is  exempt  from 
local  taxes  ?  and  all  pipes  laid  on  a  street  by  a  natural 
gas  company  are  exempt  where  such  pipes  are  used  to 
distribute  natural  gas;8  and  the  ground  and  buildings 
for  the  manufacture  and  supply  of  natural  gas  to  the 
public  are  exempt;  and  buildings  which  are  necessary 
for  the  manufacture  and  supply  of  gas  to  the  public  are 
exempt  from  local  taxation  when  the  company  paid 
taxes  on  its  capital  stock  to, the  State.4  In  California 
the  franchise  of  a  gas  company  is  assessed  as  a  whole,6 
and  when  pipes  are  extended  through  a  county  to  supply 
the  people  of  a  different  county,  such  pipes  are  not  sub- 
ject to  local  taxes  as  such  pipe  line  is  not  a  franchise, 
but  a  mere  right  of  way.6  So  where  a  water  company's 
pipes,  mains,  plugs  and  plant  were  taxed  separate  from 
the  lots  on  which  the  plant  was  situated,  the  assessment 
was  erroneous  as  the  plant,  together  with  the  pipes,  etc., 
and  franchise,  are  the  principal  thing  and  the  lots  are 
only  the  incident;7  and  where  a  dam  is  necessary  to  the 
exercise  of  a  franchise  of  an  improvement  company, 
such  dam  cannot  be  taxed  separate  from  the  franchise 
as  the  rights,  franchises,  and  plant  essential  to  the  con- 

1.  Mellon  vs.  Alleghany  Co.,  3  Pa.,  Dist.  Ct.,  422. 

2.  St.  Mareys  Gas  Co.  vs.  Elk  Co.,  191  Pa.,  458;    43  Atl.,  321; 

Ridgway  Light  &  H.  Co.  vs.  Elk  Co.,  191  Pa.,  465;  43  Atl., 
323;  Mellon  Pipe  Line  Co.  vs.  Allegheny  Co.,  2  Pa.  Dist. 
R.,448. 

3.  Pillsburgh's  App.,  123  Pa.,  374;  16  Atl.,  621,  Coatsville  Gas 

Co.  vs.  Chester  County,  97  Pa.,  476. 

4.  Schuyler  Co.  vs.  Citizens  Gas  Co.,  148  Pa.,  162;  23  Atl.,  1055; 

West  M.  Gas  Light  Co.  vs.  Phila.,  3  Pa.  Dist.  R.,  52.  See 
Sterling  Gas  Co.  vs.  Higby,  134  111.,  557; Ottawa  Gas  Co.  vs. 
Downey,  127  111.,  201. 

5.  San  Jose  Gas  Co.  vs.  January,  57  Cal.,  614. 

6.  Spring  Valley  Waterworks  vs.  Barber,  99  Cal.,  36;  33  Pac., 

735;  21  L.  R.  A.,  416. 

7.  Fond  Du  Lac  Water  Co.  vs.  City  of  Fond  Du  Lac,  82  Wis., 

322;  16  L.  R.  A.,  581;  52  N.W.  439. 


82  Exemption. 

tinued  business  and  purposes  of  a  corporation,  are  not 
to  be  severed  without  express  legislative  authority.  J 
But  where  the  franchises  are  taxed,  other  property  which 
is  not  necessary  to  carry  on  the  business  of  the  company 
is  not  exempt,  thus:  a  house  occupied  by  a  tenant  is  not 
exempt,  though  such  house  was  once  used  as  an  office;  * 
nor  are  homes  provided  for  workmen  of  the  company;8 
nor  are  houses  merely  used  for  the  convenience  of  the 
company  exempt  from  local  taxation  where  such  houses 
are  not  necessary.  * 

SEC.  8.  EXEMPTION  OF  CITIES  FROM  TAXATION.— 
Where  a  city  owns  gas  wells,  pipe  lines  and  pumping  sta- 
tions for  the  production  and  transportation  of  natural  gas 
to  the  inhabitants  of  the  city  as  well  as  to  supply  the 
city,  the  property  is  exempt  from  taxation  under  the  Ohio 
statute  exempting  the  property  of  a  city  from  taxation.  6 
But  under  a  constitution  which  provides  that,  "There 
shall  be  exempt  from  taxation  public  property  used  for 
public  purposes,  "a  city  which  supplies  water  and  gas  to 
its  citizens  and  receives  pay  therefor,  is  not  exempt  from 
taxation  and  the  state  may  impose  taxes  on  the  plant 
and  its  means  of  transportation,  the  same  as  against  any 
other  private  corporation  engaged  in  the  same  business.  6 
The  reason  assigned  for  holding  a  city  which  operates 
its  own  water  works  and  gas  plant  liable  for  taxes,  is 
that  the  furnishing  of  gas  and  water  to  the  people  of  a 
city  is  not  the  exercise  of  a  political  governmental  right 
but  simply  a  commercial  enterprise.7  The  same  court 


1.  Yellow  River  Improvement  Co.  vs.  Wood  County,  81  Wis.,  554; 

51  N.W.,1004. 

2.  Schuyler  County  vs.  Citizens  Gas  Co.,  23  Atl.,  1055;  148  Pa.,  162. 

3.  West  Chester  Gas  Co.  vs.  Chester  County,  30  Pa.,  232. 

4.  Ridgway  Light  &  Heat  Co.  vs.  Elk  County,  191  Pa.,  466. 

5.  Toledo  vs.  Hasler,  51  Ohio  St.,  418;  ^43-N.  E.,  583. 

6.  Negley  vs.  City  of  Henderson,  —  Ky.,  — ;  55  S.  W.,  554. 

7.  Com.  vs.  McKibban,  90  Ky.,  384;  Covington  vs.  Com.,  19  Ky. 

L.  R.,  105;  39  S.  W.,  836;  Same,  173  U.  S.,  231;  New  Port 
vs.  Com.,  21  Ky.,  L.R.  42;  45  L.R.A.,  518;Wagner  vs.  Rock 
Island,  146  Ills.,  139;  21  L.  R.  A.,  519. 


Tax  on  Product.  83 

has  held  that  the  property  of  a  city  used  as  a  protection 
against  fires  is  exempt  from  taxation.  * 

Many  courts  hold  that  the  maintenance  of  water 
works  or  a  gas  plant  by  a  city  for  the  supply  of  water 
and  gas,  from  which  the  city  receives  a  rental,  is  an  ex- 
ercise of  a  governmental  power  and  which  is  in  no  sense 
private. 2  When,  however,  an  independent  company  owns 
its  plant  and  supplies  a  city  and  its  people  with  gas,  such 
company  is  not  exempt  from  taxation. 8 

SEC.  9.  TAX  ON  PRODUCT  OF  A  PIPE  LINE  COM- 
PANY.— The  State  is  vested  with  the  power  to  impose  an 
excise  tax  on  the  franchise  of  a  transportation  company 
engaged  in  inter-state  commerce  and  the  tax  so  levied 
may  be  based  on  a  certain  per  cent  of  the  earnings  of 
the  company  which  accrued  from  inter-state  commerce;4 
and  where  a  transportation  corporation  is  doing  business 
in  several  states,  an  assessment  of  its  property  and  fran- 
chises may  be  apportioned  by  taking  the  whole  milage 
of  the  company  and  the  total  value  of  such  milage  and 
make  the  assessment,  in  the  state,  in  proportion  as  the 
property  bears  to  the  whole  value.5  So,  also,  where  a 
pipe  line  company  transports  oil  through  its  pipes  from 
one  state  through  another,  the  latter  may  impose  an  ex- 
cise tax  on  such  company  for  the  privilege  of  doing  busi- 
ness in  the  state,  and  when  the  tax  imposed  is  a  certain 
per  cent  of  the  receipts  from  the  transportation  of  petro- 
leum, such  tax  is  not  an  interference  with  inter-state 


1.  Owensboro  vs.  Com.  20  Ky.,  L.R.  1281;  49  S.  W.,  320;  44  L.  R. 

A.,  202. 

2.  Springfield  Fire  &  Marine  Ins.  vs.  Village  of  Keeseville,  148 

N.  Y.,  46;  30  L.  R.  A.,  660;  Smith  vs.  Nashville,  88  Tenn., 
464;  West  Hartford  vs.  Board  of  Com.,  44  Conn.,  367. 

3.  Austin  vs.  Austin  Gas  Light  &  C.  Co.,  69  Tex.,  187. 

4.  Moine  vs.  Grand  Trunk  Ry.,  142  U.  S.,  217. 

5.  State  Railroad  Tax  Cases,  92  U.  S.,  575;  Western  Union  Tel. 

Co.  vs.  Mass.,  125  U.  S.,  530;  C.  C.  C.  &  St.  L.  vs.  Backus, 
133  Ind.,  513;  18  L.  R.  A.,  729. 

6.  State,  Tide  Water  Pipe  Line  Co.  vs.  State  Board  of  Assessors, 

51  N.  J.  L.,  516;  27  L.  R.  A.,  684. 


The  Use  of  Streets  and  Highways. 


CHAPTER  IX. 

SECTION  1.  RIGHT  TO  TAKE  PRIVATE  PROPERTY 
FOR  PUBLIC  USE. — The  exercise  of  the  right  of  eminent 
domain  is  an  attribute  of  sovereignty  and  a  state  has  a 
right  to  determine  who  may  exercise  the  right,  although 
such  a  right  can  be  exercised  only  when  public  conven- 
ience, or  necessity,  requires  it;  but  when  the  legislature, 
the  representatives  of  the  sovereign  people,  declares 
that  such  necessity  or  public  convenience  exists,  the 
courts  cannot  question  the  wisdom  of  the  legislature.1 
The  time,  manner  and  the  occasion  for  the  exercise  of 
the  right  of  eminent  domain  is  in  the  control  of  the  legis- 
latures of  the  various  states  in  the  union,  and  the  only 
restraint  placed  upon  them  are  the  constitutions  of  the 
various  states."  The  use  to  which  the  property  taken 
is  to  be  applied  must  be  a  public  use,8  but  such  use  is 
public  if  the  public  has  a  right  to  use  the  land 
taken;4  however,  where  the  rights  conferred  are  essen- 
tially private  rights,  the  legislature  cannot  divest  one 

1.  Consumers  Gas  Trust  Co.  vs.  Earless,  131  Ind.,  446;  15  L.  R. 

A.,  505;  Waterworks  Co.  of  Indianapolis  vs.  Burkhart,  41 
Ind.,  364. 

2.  Secomb  vs.  Milwaukee  &  St.  P.  Ry.,  90  U.  S.,  108;  Swan  vs. 

Williams,  2  Mich.,  247;  Weir  vs.  St.  P.  &  S.  &  T.  F.  Ry., 
18  Minn.,  155;  Roanoke  vs.  Berkowitz,  80  Va.,  616;  United 
States  vs.  Jones,  109  U.  S.,  513. 

3.  McQuillen  vs.  Hatton,  42  Ohio  St.,  202;  Savannah  vs.  Hancock, 

91  Mo.,  54;  Chicago  &  E.  I.  Ry.  vs.  Wiltse,  116  111.  449. 

4.  Concord  Ry.  Co.  vs.  Greeley,  17  N.  H.,  47;  Rogers  vs.  Brad- 

shaw,  20  Johns.,  735;  Sholl  vs.  German  Coal  Co.,  118 
Ills.,  427. 


Eight  of  Eminent  Domain.  85 

man  of  his  property  and  give  it  to  another1  and  whether 
the  use  is  public  or  private  is  a  judicial  question. 2  So 
companies  organized  for  the  transportation  of  petroleum 
through  pipes,  such  as  pipe  line  companies,  are  classed 
as  tube  highways  and  have  the  right  of  eminent  domain 
for  the  purpose  of  acquiring  land  to  be  used  for  that 
purpose;8  and  the  legislature  may  charter  a  company 
for  the  purpose  of  manufacturing  and  distributing  gas  to 
a  city  and  its  people  and  may  grant  the  use  of  the 
streets  of  the  city  for  the  purpose  of  conveying  the  gas 
through  pipes  to  the  consumers,  since  the  legislature 
has  the  exclusive  control  over  the  streets  and  highways 
and  the  local  municipal  authorities  have  no  just  grounds 
to  complain.4  However,  the  manufacturing  and  sale  of 
gas  is  a  business  which  may  be  pursued  by  any  person, 
company  or  corporation  but  when  the  gas  is  to  be  con- 
veyed through  pipes  laid  in  the  streets  and  the  streets 
became  partially  occupied,  the  right  to  so  occupy  the 
streets  is  a  public  franchise  which  the  legislature  alone 
has  a  right  to  grant.5 

SEC.  2.  RIGHT  OP  EMINENT  DOMAIN  MAY  BE  LIM- 
ITED—CONDITION PRECEDENT. — Gas  companies  organ- 
ized to  supply  natural  gas  to  the  public  may  be  given 
the  power  of  eminent  domain;6  for  when  gas  is  conveyed 
through  the  pipes  of  the  company  the  gas  so  conveyed  is 
freight,  and  consequently  the  company  may  be  granted 
the  same  rights  of  a  common  carrier. 7  The  right  of  emi- 
nent domain  is  an  attribute  of  state  sovereignty,  so  the 

1.  Underwood   vs.   Baily,  59    N.   H.,  480;    Hepburns    Case,    3 

Bland,  95. 

2.  Pittsburg,  Wheeling  &  Ky.  Ry.  Co.  vs.  Benwood  Iron  Works, 

31  W.  Va.,  710;  2  L.  R.  A.,  680. 

3.  West  Virginia  Transpt.  Co.  vs. Vulcanic  Oil  Co.,  5  W.Va.,  382; 

Wisconsin  Water  Co.  vs.  Winans,  85  Wis.  26;  20  L.  R.  A., 
662;  Carothers  App.,  118  Pa.,  468;  12  Atl.,  314. 

4.  Atlanta  vs.  Gate  City  Gas  Light  Co.,  71  Ga.,  106. 

5.  Jersey  Gas  Co.  vs.  Dwight,  29  N.  J.  Eq.,  242. 

6.  Johnson  vs.  Peoples  Natural  Gas  Co.,  (Pa.)  7  Atl.,  167. 

7.  McDevetts  Appeal,  —  Pa.,  — ;  7  Atl.,  588. 


86  Right  to  Lay  Pipes  on  Streets. 

state,  when  granting  the  right  to  private  parties,  may 
impose  such  restriction  on  them  as  the  state  may  see  fit 
hence  the  legislature  may  provide  that  companies,  cor- 
porations and  associations  organized  under  the  laws  of 
the  state,  for  the  purpose  of  the  production  and  market- 
ing of  petroleum  and  natural  gas  to  the  citizens  of  the 
state  may  exercise  the  right  of  eminent  domain  and  deny 
the  right  to  those  engaged  in  supplying  such  products 
to  people  outside  the  state.1  A  private  party  can  not 
condemn  land  for  the  laying  of  a  pipe  line  to  furnish  the 
people  of  a  city  with  gas  unless  it  is  shown  as  a  condi- 
tion precedent  that  the  party  condemning  the  land  has 
made  a  contract  to  supply  the  public  or  that  such  party 
has  secured  the  right  of  way  to  lay  pipes  in  the  city  to 
supply  the  people,  as  the  right  to  condemn  is  only  inci- 
dental to  the  right  to  supply,  and  the  right  to  supply 
must  exist  as  a  condition  precedent  before  land  can  be 
appropriated  for  a  pipe  line. 2 

SEC.  3.  RIGHT  TO  LAY  PIPES  ON  STREETS,  A  LI- 
CENSE OR  A  CONTRACT  WITH  THE  CITY — EXCLUSIVE 
RIGHT. — The  business  of  manufacturing  and  distributing 
illuminating  gas  by  means  of  pipes  laid  on  the  streets  of 
a  city  is  a  business  of  a  public  character.  It  is  the  exer- 
cise of  a  franchise  belonging  to  the  state. 3  The  services 
rendered  or  to  be  rendered  for  such  a  grant  are  of  a  pub- 
lic nature,  and  where  a  gas  company  acquires  the  right 
to  use  the  streets  of  a  city  for  the  purpose  of  laying  their 
pipes  thereon,  such  an  entry  under  their  charters  is 
somewhat  analogous  to  the  exercise  of  the  power  of  emi- 
nent domain.4  And  when  such  right  is  acquired  it  is  a 
license  in  the  nature  of  an  easement,5  or,  as  some  courts 


1.  Consumers  Gas  Trust  vs.  Earless,  131  Ind.,  446. 

2.  Wisconsin  Water  Co.  vs.  Winans,  85  Wis.,  26. 

3.  Chicago  Gas  Light  &  Coke  Co.  vs.  Peoples  Gas  Light  &  Coke 

Co.,  121  111.,  530,  Shepherd  vs.  Gas  Co.,  6  Wis.,  526;  City 
of  St.  Louis  vs.  St.  Louis  Gas  Co.,  70  Mo.,  69;  Gibbs  vs. 
Baltimore  City  Consol.  Gas  Co.,  130  U.  S.,  396. 

4.  Gibbs  vs.  Baltimore  City  Consol.  Gas  Co.,  130  U.  S.,  396. 

5.  Providence  Gas  Co.  vs.  Thurber,  2  R.  I.,  15. 


Within  Ordinary  Use.  87 

hold,  a  contract  with  the  city.1  The  same  rule  applies 
to  natural  gas  companies.*  When  the  city  is  authorized 
to  furnish  gas  for  its  streets  and  to  its  people,  the  city 
has  an  implied  power  to  contract  with  others  to  do  so.8 
And  the  right  to  supply  gas  to  a  city  and  its  people  and 
use  the  streets  for  that  purpose  is  legal. *  Where  the 
city,  however,  is  not  given  the  express  power  to  grant 
exclusive  privileges  to  lay  pipes  on  the  streets,  an  at- 
tempt to  grant  such  a  power  is  void;5  and  where  there  is 
a  provision  in  the  state  constitution  against  monopolies 
the  exclusive  use  of  the  streets  can  not  be  granted  to  a 
gas  company;6  or  when  a  statute  provides  that  any  com- 
pany may  extend  its  pipes  by  getting  consent  from  the 
city.7  The  assent  of  the  city  to  lay  pipes  is  necessary 
where  the  law  so  provides8  and  when  the  right  to  lay 
the  pipes  is  acquired,  such  right  will  be  construed  more 
strictly  against  the  company,9  but  that  means  that 
nothing  shall  pass  by  implication  except  that  which  is 
necessary  to  carry  into  effect  the  object  of  the  grant.10 

SEC.  4.  WHAT  STREETS  INTENDED — WITHIN  WHAT 
TIME  MUST  THE  STREETS  BE  OCCUPIED. — Where  a  city 
ordinance  gave  a  gas  company  a  right  to  lay  gas  pipes 

1.  Chicago  Municipal  Gas  Light  Co.  vs.  Town  of  Lake,  130  111.,  42. 

2.  McDevitt  vs.  Peoples  Gas  Co.,  7  Atl.  588;  Johnston  vs.  Peoples 

Gas  Co.,  113  Pa.,  103;  7  Atl.,  167. 

3.  Newport  vs.  Newport  Light  Co.,  84  Ky.,  166. 

4.  Opinion  of  Justices,  150;    Mass.  392;    State  vs.  Hamilton,  47 

Ohio  St.,  52. 

5.  Grand  Rapids  P.  C.   E.  I.  vs.   Grand  Eapids,   E.  E.   &  L. 

Co.,  33  Fed.  R.,  659;  State  vs.  Cincinnati  Gas  Light  & 
Coke  Co.,  18  Ohio  St.,  262;  Richmond  Gas  Light  Co.  vs. 
Middleton,  59  N.  Y.,  229;  Meadville  Fuel  Gas  Co.  vs.  Mead- 
ville  Nat.  Gas  Co.,  —  Pa.,  — ;  4  Atl.,  733;  Citizens  Gas 
&  Min.  Co.  vs.  Elwood,  114  Ind.,  332. 

6.  Brenham  vs.  Brenham  Water  Co.,  67  Tex.,  543;  Memphis  vs. 

Memphis  Water  Co.,  5  Heisk,  495. 

7.  Parntt  vs.  Ferguson,  3  App.  Dev.  (N.  Y.),  176. 

8.  Pittsburg  App.,  115  Pa.,  4;  7  Atl.,  788. 

9.  State  vs.  Boyce,  43  Ohio  St.,  46;  Pensacola  Gas  Co.  vs.  Pensa- 

cola,  33  Fla.,  322;  14  So.,  826. 

10.  People,  Woodhaven  Gas  Light  Co.  vs.  Deehan,  153  N.  Y.,  528; 
47  N.  E.,787. 


88  Eight  to  Change  Grade. 

in  streets  of  a  city,  such  an  ordinance  covers  streets 
which  are  thereafter  laid  out  as  well  as  streets  in  use  by 
the  city  at  the  time  the  right  was  granted. x  So  a  city 
ordinance  which  is  silent  as  to  what  streets  shall  be 
used,  the  ordinance  is  not  void  and  the  gas  company  can 
make  its  own  selection.2  The  streets  must  be  occupied, 
however,  within  the  time  prescribed  by  the  ordinance.8 
So  where  a  town  ordinance  provides  that  a  gas  campany 
shall  occupy  the  streets  of  the  town  within  one  year  and 
commence  supplying  gas  to  the  public,  and  such  com- 
pany did  not  lay  its  pipes  within  one  year,  or  commence 
to  furnish  gas  to  the  public,  such  company  will  be  en- 
joined after  the  expiration  of  the  year  from  entering 
upon  the  streets  to  lay  its  gas  pipes. 4 

SEC.  5.  RIGHT  OF  A  CITY  TO  CONSTRUCT  SEWERS 
OR  CHANGE  GRADE  OF  THE  STREET — DAMAGES  TO  PIPES 
IN  THE  STREETS. — A  city  is  not  liable  for  damages  for 
an  injury  to  gas  pipes  while  the  city  was  constructing 
sewers  in  the  streets  of  the  city,  though  the  pipes  were 
laid  under  authority  from  the  city,  if  the  acts  of  the  city 
in  the  construction  of  the  sewers  were  not  done  in  a 
negligent  manner  and  were  done  in  the  exercise  of  a 
right  conferred  by  statute.5  The  use  of  public  streets 
for  the  purpose  of  laying  gas  pipes  thereon  is  not  a 
primary  use  for  which  streets  are  laid  out,  but,  on  the 
contrary,  streets  are  laid  out  for  the  accommodation  of 
the  public  in  traveling  over  them.  So  where  duties  are 
imposed  on  cities  to  keep  the  streets  of  a  city  in 
repair,  the  city  council  has  a  right  to  change  the 
grade  of  the  streets  at  any  time,  and  a  gas  company 
which  has  laid  its  pipes  in  the  streets,  at  a  grade  then 
established,  cannot  complain  if  the  city  council  thereafter 

1.  People  Woodhaven  Gas  Light  Co.  vs.  Deehan,  153  N.  Y.,  528. 

2.  City  of  Kalamazoo  vs.  Kalamazoo  Heat.  Power  &  L.  Co.,  — 

'Mich., — ;  82  N.  W.,  811. 

3.  Chicago  Municipal   Gas  Light    Co.  vs.   Town  of  Lake,  130 

4.  Chicago  Municipal  Gas  Light  Co.  vs.  Town  of  Lake,  130  111., 

42;  22  N.  E.,  616. 

5.  Brunswick  Gas  Light  Co.   vs.   Brunswick,  92  Me.,  493;    43 

Atl.,104. 


Right  of  Gas  Company  to  Take  up  Pavement.         89 

sees  fit  to  change  the  grade  of  the  streets  and  cannot 
prevent  the  city  from  so  changing  the  grade  since,  when 
the  company  accepted  the  right  to  lay  its  pipes  on  the 
public  streets,  the  company  acquired  the  right  subject 
to  the  right  in  the  city  to  change  the  grade.1  And  the 
same  principle  applies  as  applies  to  water  pipes;3  but  a 
city  has  a  right  and  the  power  to  contract  to  bear  the 
expense  of  a  gas  company  caused  by  a  change  in  the 
grade.3  A  city  is  liable  for  damages  to  pipes  where  a 
contract  for  the  construction  of  a  sewer  was  let  to  a  third 
person  who  was  known  to  the  officers  of  the  city  to  be 
incompetent.4  A  gas  company  has  no  right  to  charge 
the  consumers  of  gas  the  cost  of  taking  up  the  pipes  and 
relaying  them  when  a  change  of  the  grade  was  made  by 
the  city  and  the  gas  company  must  bear  such  expenses 
and  not  the  property  owners  abutting  on  the  street.5 

SEC.  6.  RIGHT  OF  GAS  COMPANY  TO  TAKE  UP  PAVE- 
MENT.— Where  a  city  grants  a  natural  gas  company  a 
right  to  lay  pipes  in  its  streets  for  the  purpose  of  sup- 
plying gas  to  its  consumers  in  a  city  and  the  gas  com- 
pany accepts  the  ordinance  and  there  is  no  restriction 
in  the  ordinance  as  to  the  right  of  the  gas  company  to 
dig  up  the  street  to  repair  its  pipes,  a  city  has  no  right 
thereafter  to  pass  an  ordinance  requiring  the  consent  of 
the  city  before  the  company  can  take  up  a  pavement, 
which  was  laid  after  the  grant  of  the  right  to  the  gas 
company,  since  the  grant  of  the  right  to  the  gas  com- 
pany and  the  acceptance  of  the  grant  is  a  legislative 

1.  Columbus  Gas  Light  &  Coke  Co.  vs.  Coleman,  50  Ohio  St.,  65; 

19  L.  R.  A.,  510;  Jamaca  Pond  Acqueduct  Co.  vs.  Brook- 
shire,  121  Mass.,  5;  Roanoke  Gas  Co.  vs.  Roanoke,  88  Va., 
810;  14  S.  E.,  665;  Ee  Deering,  93  N.  Y.,  361. 

2.  Brenham  vs.   Brenham  Water  Co.,  67  Tex.,  543;    National 

Waterworks  Co.  vs.  Kansas  City,  20  Mo.  App.,  237;  Same 
vs.  Same,  28  Fed.  R.,  921;  Rockland  Waterworks  Co.  vs. 
Rockland,  83  Me.,  267. 

3.  Parfitt  vs.  Ferguson,  3  App.  Dev.  (N.  Y.),  176. 

4.  Norwalk  Gas  Light  Co.  vs.  Norwalk,  28  Atl.,  32;  63  Conn.,  495. 

5.  Re  Deering,  93  N.  Y.,  361. 


90  Pips  Lines  on  Highways. 

contract  which  cannot  be  impaired  by  the  city. l  There 
is  no  compulsion  on  the  part  of  the  city  to  grant  a  gas 
company  the  privilege  of  using  its  streets  and  it  is  within 
the  discretion  of  a  city  to  grant  or  refuse  the  right  of  the 
use  of  a  street,2  so  the  city  has  a  right  to  impose  restric- 
tion in  its  contracts  for  the  use  of  its  streets,8  as  the  city 
has  exclusive  control  over  its  streets,4  but  when  a  city 
makes  a  contract  with  a  gas  company  which  is  within 
its  power  and  not  tainted  with  fraud  and  no  restriction 
is  placed  in  the  ordinance  limiting  the  right  of  the  gas 
company  to  open  up  the  streets  for  the  repair  of  its  pipes, 
the  contract  cannot  thereafter  be  changed  without  the 
consent  of  both  parties. 5  The  making  of  a  contract,  that 
is  the  passage  of  an  ordinance  and  the  acceptance  there- 
of, is  not  the  exercise  of  the  city's  power  to  legislate, 
but,  on  the  contrary,  is  the  exercise  of  its  right  to  con- 
tract,6 and  is  not  the  exercise  of  the  police  power  which 
abides  in  every  state. 7  So  an  ordinance  which  forbids 
a  gas  company  from  taking  up  the  pavement  so  that  a 
pipe  cannot  be  extended  from  the  mains  to  the  opposite 
side  of  the  street  is  void.8 

SEC.  7.  PIPE  LINES  ON  HIGHWAYS. — Public  high- 
ways were  not  laid  out  for  the  conveyance  of  natural 
gas  through  pipes  in  the  highway;9  and  no  person  or 
corporation  can  lay  pipes  in  the  highways  without  the 

1.  Indianapolis  vs.  Consumers  Gas  Trust  Co.,  140  Ind.,  107,  335; 

27  L.  R.  A.,  514;  39  N.  E.,  433. 

2.  Citizens  Gas  &  Min.  Co.vs.  Elwood,  114  Ind.,  332;  16  N.E.  621. 

3.  Indianapolis  vs.  Consumers  Gas  Trust  Co.,  140  Ind.,  107. 

4.  Cummings  vs.  Seymour,  79  Ind.,  491. 

5.  Western  Paving  Supply  Co.  vs.  Citizens  Street  Ry.  Co.,  128 

Ind.,  525;  26  N.  E.,  188;  28  N.  E.,  88. 

6.  Indianapolis  vs.  Indianapolis  Gas  Light  &  Coke  Co.,  66  Ind., 

395;  Illinois  Trust  &  Savings  Bank  vs.  Arkansas  City,  40 
U.  S.  Apis.,  257;  State  ex  rel.  vs.  City  of  St.  Louis,  145  Mo. 
551;  42  L.  R.  A.,  122. 

7.  Louisville  Nat.  Gas  Co.  vs.  State,  34  L.  R.  A.,  518;  135  Ind.,  59: 

Indianapolis  vs.  Consumers  Gas  Trust  Co.,  140  Ind.,  107. 

8.  Commissioners  of  North  Liberties  vs.  North  Liberties  Gas  Co., 

12  Pa.  St.,  318. 

9.  Huffman  vs.  State,  21  Ind.  App.,  449;  52  N.  E.,  713. 


Consent  of  Owner.  91 

consent  of  the  owner  of  the  fee,  and  whoever  goes  upon 
the  highway  to  lay  pipes  thereon,  or  the  removal  of  the 
same  when  placed  there  without  the  consent  of  the  land 
owner,  is  a  trespasser  and  has  no  rights  as  a  traveler.  * 

So  when  gas  pipes  are  laid  on  the  surface  of  a  high- 
way when  there  is  no  statute  authorizing  them  to  bejso 
laid,  the  use  is  an  unlawful  obstruction,  since  the  public 
is  entitled  to  use  the  surface  of  the  roads  for  their  whole 
width.2 

When  a  pipe  line  is  laid  on  a  public  highway  without 
the  consent  of  the  owner  of  the  fee,  such  owner  is  not 
prevented  from  objecting  because  no  objection  was  made 
to  the  laying  of  pipes  over  other  lands  on  a  highway  be- 
longing to  the  same  owner.8  In  Indiana  consent  of  the 
county  commissioners  must  be  obtained  before  a  gas 
company  can  lay  pipes  on  a  public  highway;4  and  where 
such  gas  pipes  are  laid  on  a  public  highway  without  the 
consent  of  the  commissioners  and  the  owner  of  the  fee, 
the  owners  of  the  fee  may  remove  such  pipes  and  the  gas 
company  will  have  no  action  against  such  owner  if  to  re- 
move them  no  unnecessary  force  is  used  by  such  owner.5 

Where  consent  is  given  to  a  pipe  line  company  to 
lay  pipes  on  a  public  highway,  the  commissioners  hav- 
ing a  right  under  the  statute  to  do  so  for  the  purpose  of 
transporting  natural  gas  and  petroleum,  the  pipe  line 
company  must  compensate  the  owner  of  the  fee  before 

1.  Huffman  vs.  State,  21  Ind.  App.,  449;  52  N.  E.,713.   See,  also, 

Goodtitle  vs.  Alker,  1  Burr,  133;  Adams  vs.  Emerson,  6 
Pick.,  57;  Robbins  vs.  Bowman,  1  Pick.,  122;  Cole  vs.  Drew, 
44  Vt.,49;  Clark  vs.  Dasso,  34  Mich.,  86;  Baker  vs.  Shep- 
herd, 24  N.  H.,  208;  Hunt  vs.  Rich,  38  Me.,  195. 

2.  Lebenon  Light,  Heat  &  Power  Co.  vs.  Leap,  139  Ind.,  443; 

Indianapolis  Nat.  Illuminating-  Gas  Co.  vs.  McMaith,  -  - 
Ind  App.,  — ;  57  N.  E.,  593. 

3.  Consumers  Gas  Trust  Co.  vs.  Hunsinger,  14  Ind.  App.,  156;  42 

N.  E.,  640. 

4.  Consumers  Gas  Trust  Co.  vs.  Hunsinger,  —  Ind.  App.,  — ;  39 

N.  E.,  423. 

5.  Consumers  Gas  Trust  Co.  vs.  Hunsinger,  —  Ind.  App.,  — ;  39 

N.  E.,423. 


92  Compensation  to  Owner. 

such  pipes  can  be  laid,  as  such  pipe  line  is  an  additional 
servitude.1  A  statute  conferring  a  right  on  the  county 
commissioners  to  grant  the  use  of  the  public  highways 
to  pipe  line  companies,  subject  to  the  use  of  the  public, 
does  not  give  the  public  an  additional  right  to  the  public 
highways,  but  the  owner's  rights  to  the  fee  in  the  high- 
way are  the  same  as  they  were  before  the  law  was  passed; 
and  a  pipe  line  company  has  no  right  in  such  public  road 
as  against  such  owner  without  compensating  him  for  the 
use  of  the  road.2  Also,  in  cities,  when  the  fee  of  the 
street  is  in  the  abutting  owner,  pipes  of  a  natural  gas 
company  are  an  additional  servitude.8 

SEC.  8.  RIGHT  OP  OWNER  TO  COMPENSATION. — The 
owner  of  the  land  over  which  a  rural  highway  is  located 
is  entitled  to  the  entire  use  of  the  land,  except  the  right 
the  public  has  to  use  the  land  for  road  purposes,  and  the 
material  thereon  for  the  purpose  of  building  and  main- 
taining the  road  suitable  for  the  safe  passage  of  travel- 
ers;4 and  when  such  highways  are  laid  out,  the  owner  of 
the  land  over  which  the  road  is  laid  out,  retains  every- 
thing connected  with  the  soil  for  all  purposes  not  in- 
compatible with  the  right  of  the  public  to  a  free  and 
unobstructed  use  of  the  road  as  a  public  highway.5  It  is 
an  ancient  and  well-settled  rule  that  the  public  acquire, 
except  in  cases  when  the  fee  is  authorized  to  be  taken, 
nothing  more  than  a  right  to  pass  and  repass.6  A  use 
of  a  rural  highway  other  than  for  the  purpose  of  travel 

1.  Consumers  Gas  Trust  Co.  vs.  Hunsinger,  —  Ind.  App.,  — ;  39 

N.  E.,423. 

2.  Hamilton  County  Commissioners  vs.  Indianapolis  Nat.  Gas  Co. , 

134  Ind.,  209;  33  N.  E.,  972;  Kincaid  vs.  Indianapolis  Nat. 
Gas  Co.,  124  Ind.,  577;  24  N.  E.,  1066;  8  L.  R.  A.,  602. 

3.  Mallory  vs.  Bradford,  1  Pa.  Dist.  R.,  670. 

4.  Cole  vs.  Drew,  44  Vt.,  49. 

5.  Postal  Telegraph  &  Cable  Co.  vs.  Eaton,  170  111.,  513;  Presby- 

terian Society  vs.  Auburn  &  R.  Ry.,  3  Hill,  567;  Kreuger 
vs.  Wisconsin  Telephone  Co.,  —  Wis.,  — ;  50  L.  R.  A., 
298. 

6.  Peck  vs.  Smith,  1  Conn.,  103;  Kincaid  vs.  Indianapolis  Nat. 

Gas  Co.,  124  Ind.,  577. 


Permission  of  Owner.  93 

is  a  taking1  of  a  man's  land;  and  the  laying"  of  a  gas  pipe 
in  such  a  highway  is  a  taking*  and  the  imposition  of  an 
additional  burden,  and  compensation  must  be  made  to 
the  owner.1  A  gas  company  has  no  right  to  place  its 
pipes  on  a  public  highway  without  permission  of  the 
land  owner  under  a  statute  giving"  a  right  to  lay  them.8 
A  statute  giving"  a  gas  company  a  right  to  place  pipes" 
on  the  highway  affects  only  the  rights  of  the  public  and 
the  rights  of  the  owner  of  the  fee  in  the  road  remain  in- 
tact and  no  pipe  line  company  can  lay  its  pipes  without 
compensating  him  therefor.3 

SEC.  9.  REFUSAL  OP  OWNER  OF  THE  FEE  TO  GRANT 
PERMISSION  TO  USE  THE  HIGHWAY. — When  a  natural 
gas  company  is  organized  for  the  purpose  of  supplying 
the  public  with  natural  gas,  any  use  made  by  such  a 
company  of  the  highways  is  a  public  use;4  and  the  work 
of  distributing  gas  to  the  public  in  large  cities  is  one  in 
which  the  public  has  an  interest;  and  when  the  proper 
road  authorities  granted  permission  to  a  gas  company  to 
lay  its  pipes  in  a  public  highway  and  such  company 
constructed  its  main  line  in  such  highway  and  many 
people  have  so  arranged  their  homes  and  factories  for  the 
purpose  of  using  gas  as  a  fuel  and  illuminating  purposes 
and  expended  large  sums  of  money  therefor  and  the  gas 
company  expended  large  sums  of  money  in  laying  its 
pipes  in  the  highway,  a  landowner  will  not  be  entitled 

1.  Bloomfield  &  R.  Natural  Gas  Light  Co.  vs.  Calkins,  02  N.  Y., 

186;  Same  vs.  Richardson,  63  Barb.,  437;  Stumpf's  App., 
116  Pa.,  33;  Webb  vs.  Ohio  Gas  Fuel  Co.,  16  West  L.  Bull., 
121;  Kincaid  vs.  Indianapolis  Nat.  Gas  Co.,  124  Ind.,  577. 

2.  Krueger  vs.  Wisconsin  Telephone  Co., —  Wis., — ;  50L.R.  A., 

302. 

3.  Kincaid  vs.  Indianapolis  Nat.  Gas  Co.,  124  Ind.,  577;  Krueger 

vs.  Wisconsin  Telephone  Co.,  -  Wis.,  — ;  50  L.  R.  A.,  298; 
Hamilton  County  Corns,  vs.  Indianapolis  Natural  Gas  Co., 
134  Ind.,  209;  33  N.  E.,  972. 

4.  Kincaid  vs.  Indianapolis  Nat.  Gas  Co.,  124  Ind.,  577;  State  vs. 

Indiana  &  0.  0.  &  G.  Co.,  120  Ind.,  575;  Carothers  vs.  Phil- 
adelphia Co.,  118  Pa.,  468;  Pennsylvania  Nat.  Gas  Co.  vs. 
Cook,  123  Pa.,  170;  Johnston's  App.  (Pa.),  7  AtL,  167. 


94  Pipes  on  Surface. 

to  an  injunction  restraining-  the  gas  company  from  the 
use  of  the  pipes,  especially  where  he  made  no  objection 
when  the  pipes  were  laid  and  his  only  remedy  is  an  action 
for  damages. *  Nor  can  the  county  commissioners  rescind 
an  order  giving  a  natural  gas  company  a  right  to  lay 
its  pipes  in  and  along  and  across  the  public  highways 
where  the  gas  company  appropriated  part  of  the  road  to 
the  use  for  which  the  grant  was  made  and  there  is  no 
showing  made  by  the  county  commissioners  that  the  gas 
company  has  injured  the  road  and  made  it  inconvenient 
for  the  public  to  travel  thereon.8 

SEC.  10.  PIPES  ON  THE  SURFACE  OF  A  HIGHWAY — 
INJURIES. — Although  a  gas  company  or  a  pipe  line  com- 
pany may  get  authority  from  the  county  commissioners 
who  have  charge  of  the  rural  public  highways,  to  lay 
pipes  on  a  public  highway,  a  gas  or  pipe  line  company  or 
any  other  person  is  not  authorized  to  lay  pipes  on  the 
surface  of  the  highway,  as  a  public  road  must  be  kept  free 
from  obstruction  for  travel  within  the  limits  of  its 
boundaries.8  So  where  a  natural  gas  company  laid  pipes 
on  the  surface  of  a  public  highway  and  the  joints  of  the 
pipes  for  the  conveyance  of  gas  were  poorly  joined,  so 
that  the  pipes  leaked  and  inexperienced  persons  caused 
the  gas  to  be  set  on  fire  at  various  times  and,  that,  while 
two  boys  were  passing  along  the  public  highway,  they 
noticed  the  gas  escaping  on  fire,  and  one  of  the  boys  who 
was  injured  and  brought  the  suit  stated  to  the  other  that 
if  the  pipe  which  was  laying  on  the  ground  was  raised 
up,  the  escaping  gas  would  make  a  nice  fire;  and  the  boy 
who  was  told  this  attempted  to  raise  the  pipe  and  the 
escaping  gas  exploded  and  tore  the  pipe  apart  and  badly 
injured  both  boys,  the  gas  company  was  held  liable  for 
the  injuries  received  by  the  boy  who  told  the  other  to 

1.  Kincaid  vs.  Indianapolis  Nat.  Gas  Co.,  124  Ind.,  577. 

2.  Hamilton  County  Commissioners  vs.  Indianapolis  Nat.  Gas 

Co.,  —  Ind.,  — ;  33  N.  E.,  972. 

3.  Lebenon  Light,  Heat  &  Power  Co.  vs.  Leap,  139  Ind.,  443;  39 

N.  E.,  57;  Indiana  Natural  &  Illuminating  Gas  Co.  vs.  Mc- 
Maith,  —  Ind.  App.,  — ;  57  N.  E.,  593. 


Damages.  95 

lift  up  the  pipe. l  So  where  gas  pipes  were  laid  on  the 
surface  of  a  public  road  and  were  there  for  a  number  of 
years  and  weeds  had  grown  over  them  and  a  person  who 
was  moving  a  traction  engine  along  the  public  highway 
undertook  to  turn  into  a  field,  and  went  far  to  the  oppo- 
site side  of  the  road  in  order  to  make  the  turn  to  enter 
the  field,  but  before  doing  so  sent  a  man  to  examine  the 
condition  of  the  road  and  such  person  did  not  discover 
the  pipes  and  the  person  who  was  moving  the  traction 
engine  was  not  a  resident  of  the  neighborhood  and  did 
not  know  the  pipes  were  there,  and  while  the  engine  was 
being  moved,  the  same  ran  over  the  pipes  which  were  on 
the  surface  of  the  highway  and  the  pipes  were  broken  and 
gas  escaped  and  was  set  on  fire  by  the  fire  in  the  traction 
engine  and  the  person  moving  the  traction  engine  was 
badly  burned,  the  gas  company  was  held  liable  for  dam- 
ages, as  it  was  unlawful  to  lay  the  pipes  on  the  surface 
of  the  highway  and  it  was  no  excuse  for  the  company 
that  the  accident  could  not  have  been  foreseen.2  And  a 
complaint  is  sufficient  which  states  that  a  natural  gas 
company  placed  pipes  on  the  surface  of  a  highway  for 
the  conveyance  of  natural  gas  and  allowed  them  to  be- 
come covered  with  weeds  and  the  person  injured  drove  a 
traction  engine  over  such  pipes  without  negligence  and 
broke  the  pipe,  and  gas  caught  fire  and  exploded  and 
injured  the  plaintiff. 3  Under  a  statute  providing  that  a 
gas  company  shall  be  liable  for  any  damages  which  may 
result  from  the  transportation  of  "natural  gas,"  a  natural 
gas  company  was  held  to  be  liable  for  damages  to  a  per- 
son who  was  without  fault,  and  the  liability  on  the  part 
of  the  company  was  absolute  if  the  gas  escaped  from 
pipes  on  the  street  and  the  person  injured  did  not  con- 
tribute to  the  injury.4  So  where  a  natural  gas  company 

1.  Lebenon  Light,  Heat  &  Power  Co.  vs.  Leap,  139  Ind.,  443. 

2.  Indiana  Nat.  &  Ilium.  Gas  Co.  vs.  McMaith,  —  Ind.  App.,  — ; 

57  N.  E.,593. 

3.  Indiana  Nat.  &  Ilium.  Gas  Co.  vs.  McMaith,  supra. 

4.  Ohio  Gas  Fuel  Co.  vs.  Andrews,  50  Ohio  St.,  695;  29  L.  R.  A., 

337. 


96  Escape  of  Gas. 

lays  its  pipes  on  the  bed  of  a  navigable  river  (which  is  a 
public  highway  in  the  broad  sense  of  the  term)  the  com- 
pany must  lay  its  pipes  so  that  they  will  not  come  in 
contact  with  boats  which  may  be  using  the  river.  And 
where  the  pipes  are  so  laid  that  they  come  in  contact 
with  a  passing  boat  and  cause  an  injury  to  the  boat, 
the  company  is  liable  for  damages  to  the  owner  of  the 
boat.1  And  where  a  gas  company  was  authorized  to 
place  posts  on  the  street  to  furnish  gas  to  a  city,  such 
company  cannot  lawfully  keep  the  posts  on  the  streets 
after  the  city  had  discontinued  to  use  gas  from  the  com- 
pany and  the  keeping  of  them  there  is  an  obstruction  on 
the  street  and  make  it  liable  for  damages.2 

SEC.  11.  ESCAPE  OF  GAS  IN  A  STREET — INJURIES 
CAUSED  THEREBY.— Gas  is  classed  among  the  dangerous 
agencies  and  no  standard  rules  of  law  can  be  laid  down 
governing  such  agencies,  but  every  precaution  suggested 
by  experience  and  known  dangers  of  gas  ought  to  be 
taken  into  consideration  and  the  law  requires  of  a  gas 
company,  that  its  pipes  and  fittings  should  be  of  such 
material  and  workmanship  and  laid  in  the  ground  with 
such  care  and  skill  so  as  to  prevent  the  escape  of  gas 
therefrom  when  new  and  a  system  of  inspection  should 
be  maintained  so  as  to  discover  any  leak  in  a  pipe  there- 
after with  promptness,  by  men  with  ordinary  skill  in  the 
business.3  That  the  escape  of  gas  from  a  pipe  is  evi- 
dence of  negligence  without  explanation,4  so  where  gas 

1.  Omslear  vs.  Philadelphia  Co.  (D.C.W.D.Pa.),31  Fed.R.,  354. 

2.  New  Orleans  Gas  Light  Co.  vs.  Hart,  40  La.  Ann.,  474;  4  So., 

215. 

3.  Koelsch  vs.  Philadelphia  Co.,  152  Pa.,  355;    18  L.  R.  A.,  759; 

25  Atl.,  522;  Consolidated  Gas  Co.  vs.  Crocker,  82  Md.,113; 
33Atl.,423;  Klebe  vs.  Philadelphia  Co.,  105  Pa.,  41;  Holly 
vs.  Boston  Gas  Light  Co.,  8  Gray,  123;  Smith  vs.  Boston 
Gas  Light  Co.,  129  Mass.,  318. 

4.  Koelsch  vs.  Philadelphia  Co.,  152  Pa.,  355;  Smith  vs.  Boston 

Gas  Light  Co.  ,129  Mass. ,  318 ;  Tiehr  vs. Consolidated  Gas  Co. , 
51  App.  Div.,  446;  Consolidated  Gas  Co.  vs.  Crocker,  82 
Md.,  113;  34  Atl.,  423;  31  L.  R.  A.,  785;  Rockford  Gas  Light 
&  Coke  Co.  vs.  Ernst,  68  111.  App.,  300. 


Injuries.  97 

escapes  from  the  mains  in  a  public  street  and  finds  its 
way  through  the  loose  ground  into  a  sewer  and  then  to 
the  cellar  of  a  house  and  the  house  is  wrecked  by  an  ex- 
plosion of  the  gas,  the  gas  company  is  liable. *  So  where 
the  jury  were  instructed  that  if  a  gas  company  brought  gas 
into  the  streets  of  a  city  through  its  mains  and  thatjthe^ 
gas  caused  the  injury  complained  of  by  exploding,  such 
facts  would  justify  an  inference  that  the  gas  company 
was  negligent  in  the  absence  of  proof  that  the  injury 
was  caused  by  other  agencies,  the  instruction  was  not  ob- 
jectionable with  other  instructions,  that  the  questions  to 
be  determined,  as  they  may  understand  from  the  evidence, 
arguments  of  counsel  and  other  instructions  given,  were — 
whether  the  accident  was  caused  by  the  negligence  of 
the  defendant  employees  and  whether  through  their  neg- 
ligence gas  found  its  way  into  the  manhole,  and  was 
ignited  and  caused  the  explosion.2  So  an  instruction 
states  the  law  correctly  which  tells  the  jury  that,  if  just 
prior  to  the  explosion,  gas,  in  sufficient  quantities  to 
cause  an  explosion,  was  present  in  the  manhole,  and 
the  circumstances  and  conditions  preceding  and  follow- 
ing the  presence  of  such  gas  in  the  manhole  and,  especi- 
ally, the  coincidence,  when  the  break  in  the  pipe  had 
been  reported,  were  such  to  exclude  theories  other  than 
the  plaintiff's  theories,  tracing  the  origin  of  the  explod- 
ing gas  to  a  break  in  the  defendant's  pipe,  then  the  jury 
may  find  for  the  plaintiff,  where  the  evidence  was  that  two 
weeks  prior  to  the  explosion,  gas  was  discovered  in  a 
sewer  manhole,  and  that  immediately  after  the  explosion 
a  leak  was  discovered  close  to  the  explosion  and  the 
pipe  was  rejoined  and  no  gas  was  found  thereafter,  and 
the  company  was  informed  some  days  before  the  explos- 
ion of  the  presence  of  gas,  though  no  gas  could  be  found, 
but  the  gas  escaping  could  permeate  the  ground  under 
the  surface  and  there  was  no  other  place  for  gas  to  come 
from  but  from  the  pipes  of  the  gas  company.3  So  where 

1.  Koelsch  vs.  Philadelphia  Co.,  152  Pa.,  355;  25  Atl.,  522. 

2.  Tiehr  vs.  Consolidated  Gas  Co.,  51  App.  Div.,  446. 

3.  Tiehr  vs.  Consolidated  Gas  Co.,  51  App.  Div.,  446. 


98  Negligence  of  Owner. 

gas  escapes  from  the  pipes  in  the  street  to  an  adjacent 
dwelling'  and  causes  damages,  and  the  leak  in  the  pipe 
was  there  for  some  days,  the  proprietor  of  the  pipes  is 
guilty  of  inexcusable  negligence  in  not  discovering  the 
leak  and  is  liable  for  the  death  of  a  person  from  asphyx- 
iation caused  by  the  gas,  for  when  pipes  are  laid  on 
the  street,  or  on  a  public  highway,  a  gas  company  must 
use  ordinary  care  in  putting  down  its  pipes. l  And  such 
a  duty  is  imposed  upon  a  gas  company,  so  that  the  prop- 
erty along  the  line  will  not  be  injured,  or  the  safety  of 
people  will  not  be  endangered,  and  where  the  gas  escapes 
from  a  defect  in  the  pipe,  under  ground,  and  finds  its 
way  to  the  house  of  an  adjoining  owner,  a  gas  company 
is  liable  for  damages  caused  by  the  explosion  of  the  es- 
caped gas.2 

SEC.  12.  ESCAPE  OF  GAS  FROM  A  STREET  MAIN  OR 
PIPE. — Where  the  employee  of  a  gas  company  was  in- 
formed of  the  presence  of  gas  in  the  cellar  of  a  build- 
ing, and  such  employee  promised  to  remedy  the  defect 
and  caused  another  employee  to  change  the  gas  meter  in 
the  building  and  took  it  for  granted  that  the  change  in 
the  meter  would  cause  the  leakage  to  cease,  and  neither 
employee  found  the  real  cause  of  the  leakage,  and  an 
explosion  occurred  from  a  light  being  brought  in  contact 
with  the  escaping  gas,  the  gas  company  will  be  deemed 
guilty  of  negligence  for  not  discovering  the  leak  of  gas 
from  the  street  pipes  through  the  ground  to  the  building, 
and  the  company  is  bound  to  use  reasonable  efforts  with- 
in a  reasonable  time  to  discover  the  cause  of  the  leakage 
and  will  be  judged  guilty  of  negligence  for  not  doing 
so. 3  A  gas  company  was  also  held  liable  for  an  explo- 
sion where  a  pipe  line  was  constructed  from  a  natural 
gas  well  along  the  streets  of  a  city  and  where  the  gas  es- 
caped from  a  sleeve  in  the  gas  pipe  and  filled  the  ground 
with  gas  which  passed  under  the  ground  to  the  opposite 

1.  Otterbach  vs.  Philadelphia,  161  Pa.,  Ill;  28  AtL,  991. 

2.  Mississenewa  Min.  Co.  vs.  Patton,  129  Ind.,  472;  28  N.  E.  1113. 

3.  Consolidated  Gas  Co.  vs.  Crocker,  82  Md.  113;  Mose  vs.  Hast- 

ings &  St.  L.  Gas  Co.,  4  Foster  &  F.,  324. 


Negligence  of  Servants.  99 

side  of  the  street,  and  which  was  confined  within  the 
ground  because  the  surface  was  frozen,  and  passed  into 
the  cellar  of  a  dwelling-  house  and  was  there  ignited  by 
a  lamp  and  destroyed  the  house  and  injured  an  occupant, 
where  the  company  bought  the  line  from  another  com- 
pany and  gas  escaped^ therefrom  for  six  years,  and  three 
of  the  years  the  defendant  company  owned  the  pipe- 
line.1 A  natural  gas  company  is  liable  for  the  damages 
caused  by  the  escape  of  gas,  when  it  knew,  or  could 
have  known  by  the  exercise  of  ordinary  care,  of  the  de- 
fects, and  the  gas  which  caused  the  explosion  leaked  at 
a  certain  point  for  a  long  time,2  though  such  company 
is  not  liable  for  defects  in  the  original  construction, 
when  it  purchased  the  pipe  line;3  but  a  gas  company  has 
been  held  liable  for  defects  in  the  original  construction 
because  they  are  charged  with  the  duty  to  keep  it  in  a 
safe  condition,  as  it  is  the  gas  and  not  the  pipe  which 
causes  the  nuisance.4  So  where  the  owner  of  a  building 
places  gas  pipes  therein,  and  a  company  furnishing  arti- 
ficial gas  makes  the  connection  with  its  main  pipes  in 
the  street,  but  in  making  the  connection  the  company 
puts  in  a  defective  pipe  and  gas  escaped  therefrom,  and 
the  gas  company  was  informed  of  the  escape  of  gas  and 
sent  an  employee  to  repair  the  pipe,  and  gas  afterwards 
escaped  and  entered  the  house  and  the  company  sent  a 
person  to  repair  the  defect,  and  gas  escaped  thereafter 
and  an  employee  of  the  company  assured  the  owner  o. 
the  house  there  was  no  danger,  the  gas  company  is  guil 
ty  of  negligence  to  a  person  who  occupied  the  house  as 
a  member  of  the  family,  for  the  damages  caused  by  an 
explosion.5  And  where  a  gas  company  applied  a  torch 

1.  Consumers  Gas  Trust  Co.  vs.  Perrigo,  144  Ind.,  350;  43  N.  E., 

306;  32  L.  R.  A.,  146. 

2.  Consumers  Gas  Trust  Co.  vs.  Corbaley,  14  Ind.  App.,  549;  43 

N.  E.,  237;  Consumers  Gas  Trust  Co.  vs.  Perrigo,  supra. 

3.  Consumers  Gas  Trust  Co.  vs.  Corbaley,  supra. 

4.  Dow  vs.  Winnepesaukee  Gas,  etc.,  69  N.  H.,  312;  42  L.  R.  A., 

569;  41  Atl.,288. 

5.  Richmond  Gas  Co.  vs.  Baker,  146  Ind.,  600;  45  N.  E.,  1049;  36 

L.  R.  A.,  683. 


100  Injuries  by  Third  Persons. 

to  gas  which  was  escaping  in  the  street  and  there  were  a 
number  of  defects  in  the  mains  of  the  gas  company,  and 
the  company  had  knowledge  of  such  defect,  and  the  fire 
was  communicated  from  the  street  to  the  cellar,  which  was 
filled  with  gas  from  the  defects,  and  an  explosion  occurs 
and  causes  damages,  the  gas  company  is  liable  though 
the  defects  were  caused  by  the  city  in  building  a  sewer;1 
but  it  has  been  held  that  where  an  employee  of  a  gas 
company  place  a  lighted  taper  on  and  along  the  sur- 
face of  the  ground  on  the  street  for  the  purpose  of  discov- 
ering a  leakage  of  gas,  and  the  light  was  communicated 
to  the  cellar  of  a  property  owner  through  a  sewer  under 
the  ground,  and  the  employee  who  lit  the  taper  had  no 
knowlege  of  the  sewer  and  an  explosion  occured  in  the 
cellar  which  contained  gas,  the  owner  of  the  gas  works 
is  not  liable  if  the  test  was  the  usual  one,  and  the  persons 
whose  property  was  injured  has  the  burden  of  showing 
that  it  was  not  the  usual  way  of  making  the  test.* 

SEC  13.  PIPES  INJURED  BY  THIRD  PERSONS. — A 
gas  company  is  charged  with  the  duty  to  keep  its  pipes 
in  good  repair  and  must  maintain  a  system  of  inspection 
to  see  that  its  pipes  are  in  a  safe  condition,  and  it  is 
no  excuse  for  a  gas  company  that  its  pipes  have  been  in- 
jured by  the  act  of  a  third  person. 8  So  where  a  gas  com- 
pany had  notice,  or  could  have  notice,  that  its  pipes  were 
injured  by  the  plowing  up  of  a  street  and  that  gas  was  es- 
caping, the  company  should  have  used  precaution  to 
prevent  the  escape  of  gas,  and  should  shut  off  the  gas 
and  repair  the  leak  to  avoid  injuries  to  persons  and 
property.4  So  where  a  person  was  injured  by  inhaling 

1.  Aurora  Gas  Light  Co.  vs.  Bishop,"81  111.  App.,  493. 

2.  Littman  vs.  City  of  N.  Y.,  159  N.  Y.,  559;  54  N.  E.,  1093;  36 

App.,Div.l89. 

3.  Pine  Bluff  Water  &  Light  Co.  vs.  Schneider,  62  Ark.,  109;  34 

S.  W.,  547;  33  L.  R.  A.,  366;  Butcher  vs.  Providence  Gas 
Co.,  12  E.  I.,  149;  34  Am.  Rep.,  626;  Greanley  vs.  Holyoke, 
Water  Co., .174  Mass.,  437;  54  N.  E.,  880. 

4.  Pine  Bluff  Water  &  Light  Co.  vs.  Schneider,  supra;    Chisholm 

vs.  Atlantic  Gas  Light  Co.,  57  Ga.,  28;  Butcher  vs.  Provi- 
dence Gas  Co.,  12  R.  I.,  149. 


Injuries.  101 

gas  from  a  defective  pipe  in  the  street,  and  the  defect 
was  caused  by  the  settling  of  the  ground  around  the  pipes 
in  the  street,  caused  by  a  construction  of  a  sewer  near 
the  pipes  by  the  city,  a  gas  company  is  liable,  when  it 
could  have  learned  of  the  defective  condition  by  applying 
proper  tests,  and,  in  this  case,  where  the  gas  had  been  se- 
caping  for  a  day,  until  discovered  by  a  third  person  the 
gas  company  did  not  know  the  sewer  was  constructed,  the 
plaintiff  is  entitled  to  the  submission  of  the  question  of 
negligence  on  the  part  of  the  gas  company  to  the  jury. * 
So  where  a  gas  box  was  placed  on  a  sidewalk  by  a  gas 
company,  at  the  expense  of  the  owner  of  an  adjoining 
building  and  an  explosion  occurs,  which  injures  a  person 
on  the  sidewalk,  the  company  is  liable,  though  the  dan- 
ger was  increased  by  the  city  widening  the  sidewalk; a 
and,  when,  in  such  a  case,  a  judgment  is  recovered  against 
the  city  for  damages,  the  city  can  recover  such  judgment 
against  the  gas  company  and  a  judgment  by  the  person 
injured  is  conclusive  against  the  gas  company  in  a  suit 
by  the  city  against  the  gas  company  if  the  latter  had  no- 
tice and  an  opportunity  to  defend.8  And  where  a  city  is 
engaged  in  the  distribution  of  gas  through  pipes  in  the 
street  and  the  pipes  are  injured  and  gas  escapes  and  an 
explosion  occurred  for  which  the  city  was  held  liable, 
the  city,  in  such  case,  may  hold  the  person  who  injured 
the  pipes  liable,4  and  when  the  act  of  a  third  person 
was  the  cause  of  an  injury  and  the  owner  of  the  gas  was 
sued  and  a  judgment  was  recovered  and  an  appeal  was 
taken,  a  compromise  of  the  case  pending  the  appeal  will 
not  prevent  a  recovery  by  the  gas  company  against  the 
person  who  caused  the  defect  or  injured  the  pipe. 6 

1.  Greanley  vs.  Holyoke  Water  Co.,  174  Mass.,  437. 

2.  District  of  Columbia  vs.  Washington  Gas  Light  Co.,  19  Wash- 

ington Law  E. ,  354. 

3.  Washington  Gas  Light  Co.  vs.  D.  C.,  161  U.  S.,  316. 

4.  Philadelphia  Co.  vs.  Central  Traction  Company,  165  Pa.,  456. 

5.  Philadelphia  vs.  Central  Traction  Co.,  165  Pa.,  456;   30  Atl., 

934. 


102  Explosive  Nature. 

SEC.  14.  JUDICIAL  NOTICE  OF  EXPLOSIVE  CHAR- 
ACTER OF  GAS.— TEST  OF  PIPES.— The  courts  will  take 
judicial  notice  of  the  explosive  character  of  gas  and  that 
the  same  is  combustible;1  and  when  the  statutes  provide 
that  the  gas  in  the  pipes  must  be  submitted  to  a  certain 
pressure  to  test  the  durability  of  the  pipes,  and  the  com- 
pany fails  to  make  the  test  and  gas  escapes  from  its 
pipes  in  the  streets  and  causes  an  explosion,  the  gas 
company  is  liable.2  So  where  crude  pretroleum  escapes 
and  is  subjected  to  heat  it  is  a  matter  of  ordinary  scien- 
tific knowledge  that  combustible  gases  arise  from  the 
oil  and  the  courts  will  take  judicial  notice  thereof. 8 

SEC.  15.  DAMAGE  TO  TREES  AND  CROPS  CAUSED  BY 
ESCAPING  GAS. — When  a  natural  gas  company  lays  its 
pipes  along  a  street  and  the  pipes  are  defectively  jointed 
and  gas  escapes  from  the  pipes  and  permeates  the  ground 
and  absorbs  the  moisture  therefrom  and  causes  shade 
trees  to  die,  the  gas  company  is  liable  for  the  value  of 
the  shade  trees  to  the  owner  of  the  land.4  And  the  lia- 
bility of  the  company  is  sufficiently  established  by  evi- 
dence that  gas  was  escaping  after  the  pipe  line  was  laid 
and  that  soon  after  the  trees  began  to  die,  and  that  after 
the  pipe  line  was  taken  up  and  the  joints  cemented  and 
the  gas  ceased  to  escape,  trees  were  planted  in  the  place 
of  those  which  had  perished  and  they  grew  vigorously.5 
And  a  gas  company  is  liable  for  the  injury  to  plants  in  a 
greenhouse  caused  by  the  escape  of  gas  from  its  pipes, 
and  that  it  is  no  defense  for  such  an  injury  that  it  had 
purchased  the  gas  plant  and  pipes  and  had  no  notice  of 
the  defective  condition  of  the  pipes,  since  the  gas  com- 
pany's liability  is  not  dependent  upon  its  knowledge  of 

1.  Alexandria-Min.  &  E.  Co.  vs.  Irish,  16  Ind.  App., 534;  44  N.  E., 

680. 

2.  Alexandria  Min.  &  E.  Co.  vs.  Irish,  supra. 

3.  Fuchs  vs.  St.  Louis,  133  Mo.,  168;  31  S.  W.,  115;  34  L.  R.  A., 

118. 

4.  Evans  vs.  Keystone  Gas  Co.,  148  N.  Y.,  112;  30  L.  R.  A.,  651; 

Butcher  vs.  Providence  Gas  Co.,  12  R.  I.,  149. 

5.  Evans  vs.  Keystone  Gas  Co.,  148  N.  Y.,  112. 


Negligence  of  Persons  Injured.  103 

the  pipes  defective  condition  or  the  gas  escaping1,  but 
upon  the  observance  or  neglect  of  care  by^the  gas  com- 
pany.1 

SEC.  16.  NEGLIGENCE  OF  THE  PERSON  INJURED. — 
WHEN  A  BAR  TO  A  RECOVERY. — In  an  action  for  dam- 
ages against  a  gas  company,  the  person  who  brings  the 
action  must  not  be  guilty  of  negligence  which  contrib- 
uted to  the  injury,  because  the  action  is  grounded  upon 
negligence  and  each  must  perform  the  duty  of  not  being 
negligent.*  So  when  the  person  injured  by  gas  escaping 
on  a  street  and  thence  into  a  sewer  and  the  person  in- 
jured was  a  man  who  had  experience  as  to  the  explosive 
character  of  gas,  he  cannot  recover  when  the  gas  was 
set  on  fire  by  him  while  searching  for  the  leak.3  So 
when  gas  had  for  a  long  time  been  escaping  into  a  cellar 
and  the  owner  of  the  place  was  informed  of  that  fact, 
and  directed  a  person  to  go  into  the  cellar  with  a  light 
and  an  explosion  occurs,  the  negligence  of  the  plaintiff 
will  prevent  a  recovery,  since  the  introduction  of  the 
light  into  the  cellar,  where  the  gas  was,  was  the  proxi- 
mate cause  of  the  injury;4  but  where  a  person  entered  a 
cellar  and  caused  matches  to  be  lit  in  the  cellar  to  light 
a  lamp  and  a  gasoline  stove,  and  no  explosion  occurred 
until  some  ten  minutes  after  the  entry  into  the  cellar 
and  the  lamp  burning  in  the  cellar  was  not  injured  and 
gas  jets  at  the  head  of  the  stairway  leading  to  the  cellar 
were  observed  to  burn  a  bluish  flame  immediately  before 
the  explosion  occurred,  the  proximate  cause  of  the  injury 
was  held  to  be  the  escaping  of  gas.5  The  Court  said,  "In 

1.  Dow  vs.  Winnepesaukee  Gas  &  E.  Co.,  69  N.  H.,  312;  42  L. 

R.  A.,  569;  41  Atl.,  288. 

2.  Hunt  vs.  Lowell  Gas  Co.,  1  Allen,  343;  Oil  City  Fuel  Supply 

Co.  vs.  Boundy,  122  Pa.,  449;  Oil  City  Gas  Co.  vs.  Robinson, 
99  Pa.,  1;  Lanagen  vs.  New  York  Gas  Light  Co.,  71  N.  Y., 
29;  Consolidated  Gas  Co.  vs.  Crocker,  82  Md.,  113;  Pine 
Bluff  Water  &  Light  Co.  vs.  Schneider,  62  Ark.,  109;  34 
S.  W.,547;  33  L.  E.  A.,  366. 

3.  Oil  City  Gas  Co.  vs.  Robinson,  99  Pa.,  1. 

4.  Lanagan  vs.  New  York  Gas  Light  Co.,  71  N.  Y.,  29. 

5.  Consolidated  Gas  Co.  vs.  Crocker,  82  Md.,  113;  31  L.R.  A.,785. 


104  Negligence  of  Servant. 

these  cases  where  the  explosion  instantly  followed  upon 
a  light  being  brought  in  contact  with  the  gas,  and  there 
could  be  no  possible  dispute  that  the  bringing  of  the 
light  in  contact  with  the  gas  caused  the  explosion;  but 
when  there  is  not  such  a  connection  between  the  act  of 
entering  the  house  with  a  lighted  lamp  and  the  explosion 
of  gas  as  to  establish  with  a  certainty  and  to  the  exclu- 
sion of  any  other  reasonable  hypothesis,  the  relation  of 
cause  and  effect,  the  question  as  to  what  caused  the  ex- 
plosion is  for  the  jury  to  solve  under  proper  instructions 
from  the  court.  When,  therefore,  as  here,  more  than  ten 
minutes  intervened  between  the  time  the  lamp  was  taken 
into  the  cellar  and  the  time  the  subsequent  explosion 
occurred,  and  when,  as  here,  the  lamp  itself  was  unin- 
jured, it  would  be  impossible  for  the  court  to  assume 
that  the  lighted  lamp  caused  the  explosion,  and  to  rule, 
as  a  conclusion  of  law,  that  the  plaintiff's  employees 
were  guilty  of  contributory  negligence  in  taking  the 
lamp  into  the  cellar;  this  is  true  also  with  respect  to 
the  lighting  of  matches  to  ignite  the  gasoline  in  the 
stove."1 

SEC.  17.  NEGLIGENCE  OF  A  SERVANT  BARS  RECOV- 
ERY.—QUESTIONS  FOR  THE  JURY. — Where  gas  escaped 
from  the  pipes  of  a  gas  company  from  the  street  to  a 
store  and  the  servant  of  the  owner  of  the  store  struck 
matches  to  ascertain  whether  gas  was  escaping  from  the 
pipes  in  the  store,  and  the  gas  exploded  and  injured  the 
store,  and  the  owner,  in  an  action  to  recover  damages  from 
the  gas  company,  set  up  that  the  gas  company  was  guilty 
of  negligence  in  permitting  gas  to  escape,  and  that  the 
servant  who  struck  the  match  was  also  guilty  of  negli- 
gence, the  owner  of  the  store  was  held  to  be  barred  from 
a  right  to  recover  because  of  the  negligence  of  his  ser- 
vant in  striking  the  match  and  causing  the  gas  to  ex- 
plode, and  the  allegation  and  finding  of  the  jury  were 
conclusive  against  the  owner  of  the  property.2  The 

1.  Consolidated  Gas  Co. vs.  Crocker, 82  Md.,  113;  31  L.  R.  A.,  785. 

2.  Pine  Bluff  Water  &  Light  Co.  v.  Schneider,  62  Ark.,  109;  33 

L.  B.  A.,  366. 


Consent  of  City.  105 

court,  however,  would  not  hold  that  it  is  negligence 
per  se  for  a  person  to  strike  a  match  to  discover  the  leak- 
age of  gas  without  notice  that  gas  was  escaping  in  large 
or  small  quantities,  but  if  such  person  had  notice  that 
gas  was  escaping  in  large  quantities,  it  would  be  gross 
carelessness  to  apply  a  lighted  match  to  it;  "but  if  the 
quantity  was  small,  or  if  there  was  nothing  to  cause  a 
man  of  ordinary  prudence  placed  in  the  same  situation 
to  believe  there  was  danger  of  an  explosion,  it  would  not 
be  negligent  to  light  a  match,  such  question  is  one  for 
the  jury  to  determine."1  The  question  whether  the  per- 
son injured  was  negligent  in  not  giving  notice  to  the  com- 
pany is  also  for  the  jury.2 

SEC.  18.  CONSENT  OP  CITY  TO  LAY  PIPES— SIDE- 
WALKS PART  OF  THE  STREET — CONTROL  OF  STREETS  BY 
CITY— INJURIES  TO  PEDESTRIANS  OR  TRAVELERS. — Un- 
der the  Pennsylvania  Act  of  May  29,  1885,  a  natural  gas 
company  which  was  chartered  and  doing  business,  be- 
fore the  act  was  passed,  in  the  transportation  and  dis- 
tribution of  natural  gas,  has  no  right  to  enter  upon  the 
streets  of  a  city  without  the  consent  of  the  city;  and 
the  acceptance  of  the  provisions  of  that  act,  forbidding 
gas  companies  organized  under  it,  to  enter  upon  or  lay 
any  pipes  in  the  streets  of  any  borough,  without  the 
assent  of  the  borough  council,  unless  they  were  then  en- 
gaged in  transporting  natural  gas;  and  another  section 
of  the  act  provides  that  no  corporation  accepting  its 
provisions  shall  be  permitted  to  enter  any  borough  with- 
out the  assent  of  the  council,  unless  such  company  had 
been  engaged  in  supplying  natural  gas  or  had  laid  its 
pipes  on  the  street  for  that  purpose. 8  And  though  such 

1.  Pine  Bluff  Water  &  Light  Co.  v.  Schneider,  62  Ark.,  109; 

Chisholm  vs.  Atlantic  Gas  Light  Co.,  57  Ga.,  28;  Butcher  vs. 
Providence  Gas  Co.,  12  R.  I.,  149;  Lanagan  vs.  N.  Y.  Gas 
Light,  71N.Y.,  29;  Kibelevs.  Philadelphia,  105  Pa.,  41;  Ot- 
tersbach  vs.  Philadelphia,  161  Pa. ,  111;  Holly  vs.  Boston  Gas 
Light  Co.,  8  Gray,  123;  Emerson  vs.  Lowell,  3  Allen,  410. 

2.  Hunt  vs.  Lowell  Gas  Light  Co.,  1  Allen,  343. 

3.  Philadelphia  Co.  vs.  Freeport,  167  Pa.,  279;  31  Atl.,  571. 


106  Control  of  Streets  by  City. 

companies  cannot  enter  without  the  assent  of  the  city  or 
borough,  yet  the  borough  or  city  cannot  impose  any  re- 
striction on  the  gas  company  not  imposed  by  the  act 
itself,  and  must  either  give  or  refuse  assent  without  any 
restriction.1  So  when  a  gas  company  was  supplying 
gas  under  the  Pennsylvania  Act  of  1874,  and  had  its 
pipes  on  the  streets  and  then  became  incorporated  under 
the  act  of  1885,  no  further  consent  of  the  city  is  neces- 
sary.2 The  sidewalks  of  a  city  are  part  of  the  street  and 
a  city  may  lay  pipes  therein  and  give  others  the  right 
the  same  as  other  portions  of  the  street.3  A  city  may 
prevent  gas  companies  from  laying  gas  pipes  in  the 
street  during  the  winter  months,  so  as  not  to  cause  the 
streets  to  become  obstructed.4  When  a  gas  company 
was  organized  under  the  Pennsylvania  Act  of  1885  and 
laid  its  pipes  in  the  streets  of  a  borough,  the  borough 
cannot  have  the  gas  company  perpetually  enjoined,  on 
the  ground  that  the  gas  company  did  not  get  consent 
from  the  borough  and  that  the  pipes  are  defective  where 
the  answer  of  the  gas  company  denied  these  allega- 
tions. 8  A  city  which  gives  a  gas  company  a  right  to  lay 
pipes  in  the  street  has  authority  to  impose  such  restric- 
tions on  the  gas  company  as  will  assure  the  city  that 
the  work  is  done  properly.6  In  laying  its  pipes  on  the 
streets  a  gas  company  is  liable  for  an  injury  caused  by 
a  vehicle  turning  over  and  injuring  the  occupant;7  and 
where  a  gas  company  in  connecting  its  main  with  the 
service  pipe  of  a  consumer  places  a  flagstone  over  an 
excavation  made  in  order  to  effect  the  connection  and  a 
person  is  injured  without  negligence,  and  there  was  no 
excuse  for  so  laying  the  flagstone  over  the  excavation, 

1.  Pittsburgh's  App.,  115  Pa.,  4. 

2.  Allegheney's  App.  vs.  Charities  Valley  Gas  Co.,  —  Pa.,  — ; 

llAtl.,658. 

3.  McDavitt  vs.  Philadelphia  Gas  Co.,  160  Pa..  367;  28  Atl.,  948. 

4.  North  Liberties  Corns,  vs.  North  Liberties  Gas  Co.,  12  Pa.,  318. 

5.  Butler  vs.  Butler  Gas  Co.,  —  Pa.,  — ;  5  Cent.,  669. 

6.  City  of  Kalamazoo  vs.  Kalamazoo  Gas  Co.,  82  N.  W.,  811. 

7.  Goodson  vs.  Sunbury  Gas  Consumers  Co.,  75  Law  Tenn.,  R. 

251. 


Control  of  City  Over  Mains.  107 

the  gas  company  is  liable  for  the  injury;1  but  under  an 
ordinance  which  provides  that  the  gas  company  in  lay- 
ing- its  pipes  on  the  streets  should  restore  the  street  to 
its  former  condition,  as  near  as  may  be,  and  as  soon  as 
possible,  and  the  company  did  as  the  ordinance  required, 
the  company  is  not  bound  to  keep  the  street  in  repair 
and  is  not  liable  for  injuries  to  a  person  caused  by  the 
sinking  of  the  earth  where  the  excavation  was  made.* 

SEC.  19.  CONTROL  OVER  THE  MAINS  BY  THE  CITY 
— EXTENSION  OF  THE  MAINS— WHEN  THE  COMPANY  AC- 
QUIRES THE  RIGHT  TO  LAY  ITS  PIPES  ON  THE  STREET. — 
When  an  ordinance  provided  that  the  gas  company 
should  lay  its  pipes  at  a  depth  of  two  and  one  half  feet 
and  also  provided  that  the  right  was  subject  to  all  ordi- 
nances previously,  or  which  thereafter  may  be  passed, 
the  laying  of  such  pipe  is  subject  to  the  supervision  of 
the  street  commissioner,  where  an  ordinance  was  passed 
previously  placing  the  laying  of  such  pipes  under  his 
supervision.3 

A  city  council  may  require  a  gas  company  to  extend 
its  main  through  other  streets  where  such  right  is  re- 
served upon  a  petition;  and  a  majority  of  the  owners  and 
occupants  of  land  petition  for  such  extension  and  ten 
per  cent  of  the  petitioners  agree  to  take  gas,  as  is  re- 
quired as  a  condition  precedent,  where  the  gas  company 
has  the  exclusive  right  to  furnish  the  city  and  its  people 
with  gas,  and  the  gas  company  may  be  required  to  ex- 
tend its  mains  at  its  own  expense,  as  public  necessity 
may  require  it;4  but  when  an  ordinance  requires  a  gas 
company  to  extend  its  mains,  if  the  gas  company  has  not 
the  physical  or  financial  means  to  perform  the  work,  the 
company  is  not  liable  for  the  penalty  provided  in  the 

1.  Whalen  vs.  Citizens  Gas  Light  Co.,  63  N.  Y.  Rep.,  317. 

2.  G-rundy  vs.  Janesville,  84  Wis.,  574;  54  N.  W.,  1085. 

3.  Wilkinsburg  Gas  Co.  vs.  Wilkinsburg  (Pa.  C.  B.),  25  Pitts. 

L.  J.  N.  S.,  42. 

4.  Indianapolis  vs.  Consumers  Gas  Trust  Co.,  140  Ind.,  107;   39 

N.  E.,  943;  Pensaeola  Gas  Co.  vs.  Pensacola,  33  Fla.,  322; 
14  So.,  826. 


UNlVERSi 


108  Exclusive  Eight. 

ordinance;1  and  where  a  city  is  largely  in  arrears  for  gas 
furnished,  the  city  cannot  require  the  company  to  make 
further  expenditures  in  its  behalf  in  extending-  its 
mains.  * 

A  gas  company  has  no  right  to  lay  pipes  on  the 
street,  where  the  ordinance,  which  gave  it  the  right  to 
lay  pipes  on  the  street,  provided  that  the  company  should 
own  one  gas  well  before  the  pipes  are  laid  and  no  well 
was  yet  owned,  and  another  company  is  not  relieved 
from  furnishing  gas  free  to  the  city,  while  it  has  the  ex- 
clusive right  to  furnish  gas  until  the  well  is  acquired  by 
the  former  company.8 

SEC.  20.  EXCLUSIVE  RIGHT.— Where  a  gas  company 
is  organized  under  the  general  laws  of  Ohio  and  has  a 
right  to  lay  pipes  on  the  streets  and  furnish  the  city 
with  gas,  it  has  no  exclusive  privileges.4  So  where  a 
statute  or  the  constitution  of  the  state  provides  that 
monopolies  are  illegal,  a  city  cannot  give  a  gas  corpora- 
tion the  exclusive  right  to  lay  its  pipes  in  the  streets  of 
a  city;6  and  where  a  gas  company  has  no  exclusive  right 
to  furnish  gas  it  cannot  complain  because  the  city  builds 
its  own  gas  works,  though  the  gas  company  had  for 
many  years  the  sole  right  to  furnish  gas.6  And  where 
the  legislature  does  not  confer  upon  a  city  the  right  to 
give  a  gas  company  the  exclusive  right  to  furnish  gas  a 
city  has  no  power  to  do  so. 7  But  where  an  exclusive 
privilege  is  legally  given  to  a  gas  company  for  a  number 
of  years  and  the  city  has  undertaken  to  grant  a  similar 
right  to  another  company,  the  city  will  be  restrained  by 
injunction  from  granting  such  right,8  though  when  an 


1.  Indianapolis  vs.  Consumers  Gas  Trust  Co.,  140  Ind.,  107. 

2.  Pensacola  Gas  Co.  vs.  Pensacola,  33  Fla.,  322. 

3.  Newark  Gas  &  Fuel  Co.  vs.  Newark,  7  Ohio  N.  P.,  76. 

4.  Hamilton  Gas  Light  &  Coke  Co.  vs.  Hamilton,  37  Fed.  R.,  832. 

5.  Hamilton  Gas  Light  &  Coke  Co.  vs.  Hamilton,  37  Fed.  R.,  832. 

6.  State  Atty.  Gen.  vs.  Hamilton,  47  Ohio  St.,  52. 

7.  Parkersburg  Gas  Co.  vs.  Parkersburg,  30  W.  Va.,  435;  4  S.  E., 

650;  Capil,  C.  L.  &  F.  Co.vs.  Talahassee,  (Fla.)  28 So.,  810. 

8.  Newport  vs.  Newport  Light  Co.,  84  Ky.,  166. 


Monopolies.  109 

exclusive  privilege  has  been  held  to  create  a  monoply, 
an  injunction  would  not  lie;1  or  that  the  granting  of  such 
a  right  was  legislative  in  its  character  of  equity  a  court 
had  no  control  over  a  legislative  discretion  of  the  city 
council.8 

And  where  such  a  use  is  given,  that  is  to  lay  pipes 
and  furnish  gas,  no  other  use  will  be  implied  and  before" 
the  company  can  use  any  other  means  of  lighting,  con- 
sent from  the  city  must  be  obtained.8  A  gas  company 
has  no  exclusive  privileges  to  use  the  streets  simply  be- 
cause such  company  is  authorized  to  lay  its  pipes  on  the 
streets  and  the  city  agrees  to  take  a  certain  amount  of 
gas  from  the  company  for  a  certain  time,  from  lamps 
placed  on  such  streets  by  the  gas  company.4  Nor  has  a 
gas  company  chartered  by  the  legislature  any  exclusive 
rights  where  it  was  required  to  furnish  gas  within  three 
years  to  the  city  and  its  people  and  was  authorized  to 
make  and  sell  gas  for  fifty  years. 6 

SEC.  21.  MONOPOLIES. — Gas  companies  having  a 
right  to  use  the  streets  of  towns  and  public  highways 
for  the  transportation  of  gas  to  supply  cities  and  the 
public  cannot  barter  away  their  right  to  do  business;  nor 
can  they  sell  or  assign  its  corporate  rights  to  another 
company  without  consent  from  the  legislature.6  The 
business  of  supplying  illuminating  gas  is  a  business  of  a 
public  nature  and  to  meet  a  public  necessity,  so  when  two 
gas  companies  in  the  same  city  agree  that  one  of  the 
companies  shall  cease  furnishing  gas  to  part  of  the  pub- 
lic and  that  gas  shall  not  be  sold  below  a  certain  price 

1.  Norwich  Gaslight  Co.  vs.  Norwich  Gas  Co.,  25  Conn.,  19. 

2.  Des  Moines  Gas  Co.  vs.  Des  Moines,  44  la.,  505;   Montgomery 

Gas  Light  Co.  vs.  Montgomery,  87  Ala.,  245;  4  L.  R.  A.,  616. 

3.  Newport  vs.  Newport  Light  Co.,  11  Ky.  L.  R.,  840;  12  S.  W., 

1040. 

4.  Vincennes  vs.  Citizen  Gas  Light  &  Coke  Co., -132  Ind.,  114;  31 

N.  E.,573;  16  L.  R.  A.,  485. 

5.  Memphis  Gayaso  Gas  Co.  vs.  Williamson,  9  Heisk  (Tenn.) ,  314. 

6.  Brunswick  Gas  Light  Co.  vs.  United  Gas  &  Fuel  Co.,  85  Me., 

532;  35  Am.  St.  R.,  385;  27  Atl.,  525;  Chicago  Gas  Light  & 
Coke  Co.  vs.  People's  Gas  Light  &  Coke  Co.,  121  111.,  530. 


110  Monopolies. 

without  the  consent  of  the  other  company,  the  agree- 
ment is  illegal  and  void,  especially  when  a  statute  pro- 
hibits one  of  the  companies  from  entering1  into  such 
contract.1  So  where  two  gas  companies  which  have  a 
right  to  lay  their  pipes  in  the  streets  of  a  city  enter  into 
an  agreement  that  one  will  exchange  its  pipes,  in  a 
certain  part  of  the  city,  for  the  pipes  of  the  company  in 
another  part  of  the  city,  and  that  neither  company  would 
lay  pipes  in  the  parts  so  surrendered  for  a  period  of  one 
hundred  years,  and  would  not  interfere  with  the  rights 
of  the  other  in  the  parts  of  the  city  so  designated,  such 
a  contract  is  void  as  a  partial  restraint  of  trade. 

The  court  in  that  case  said:  "The  ordinary  rule  that 
contracts  in  partial  restraint  of  trade  are  valid  does  not 
apply  to  corporations  like  appellant  and  appellee,  be- 
cause they  are  engaged  in  a  public  business  and  furnish- 
ing that  which  was  a  matter  of  a  public  concern  to  all 
the  inhabitants  of  the  city."8  So  where  a  pipe  line  com- 
pany receives  authority  from  the  legislature  to  condemn 
land  for  the  transportation  of  gas  or  oil  through  the 
pipes,  the  legislature  stamps  such  pipe  line  as  a  concern 
in  which  the  public  has  an  interest  and  a  contract  with 
the  owner  of  the  land  not  to  give  any  other  similar  com- 
pany a  right  of  way  over  the  land  is  void,  as  the  contract 
is  in  partial  restraint  of  trade. 8  "So,  if  by  taking  pri- 
vate property  under  the  power  of  eminent  domain,  after 
paying  the  owner  therefor,  stamps  the  business  of  a  public 
character,  that  the  business  may  not  be  restrained  by 
contract,  the  court  could  see  no  reason"  why  the  public 
character  should  not  attach  to  a  corporation  which  is 
vested  with  the  right  and  power  to  tear  up  and  use  the 
streets  of  a  great  city.  "The  fee  of  tlie  streets  is  vested 
in  the  city  for  the  benefit  of  the  public;  any  business 
which  requires  their  use  requires  the  use  of  property 

1.  Gibbs  vs.  Consolidated  Gas  Co.,  130  U.  S.,  386. 

2.  Chicago  Gas  Light  Co.  vs.  People's  Gas  Light  Co.,  121  111.,  545. 

3.  West  Virginia  Transportation  Co.  vs.  Ohio  River  Pipe  Line  Co. , 

22W.Va.,617. 


Oil  Monopolies.  Ill 

which  belongs  to  the  public."1  So  when  two  gas  com- 
panies, the  only  companies  in  a  city,  agree  on  a  certain 
price  to  be  charged  consumers,  and  one  company  would 
not  furnish  gas  to  the  customers  of  the  other,  it  is  an  abuse 
of  its  corporate  rights  and  powers  and  is  a  ground  tor 
the  forfeiture  of  its  charter.2  So  when  all  the  gas  and 
electric  light  plants  are  united  under  one  management 
it  is  in  violation  of  the  Texas  Anti-Trust  Laws,  and  their 
charters  may  be  taken  away  for  entering  into  such  a 
trust.3 

SEC.  22.  OIL  MONOPOLIES. — Where  an  agreement 
is  entered  into  by  a  majority  of  the  stockholders  of  a 
corporation  organized  for  the  purpose  of  purchasing,  re- 
fining and  marketing  petroleum  oil,  and  such  an  agree- 
ment provided  that  the  stock  should  be  transferred  to 
certain  trustees  and  that  other  companies  and  partner- 
ships interested  in  the  production,  refining  and  market- 
ing of  petroleum  shall  do  likewise,  and  that  the  said  trus- 
tees to  whom  the  stock  was  transferred  should  hold  the 
stock  of  the  various  companies  in  trust  for  the  benefit 
of  the  stockholders,  and  that  in  place  of  the  stock  sur- 
rendered to  the  trustees  the  various  stockholders  would 
receive  trust  certificates  to  the  amount  of  stock  held  by 
each  and  equal  to  the  par  value  of  the  stock  and  interest 
in  the  other  concerns,  and  the  trustees  who  held  the 
stock  had  power  to  elect  the  directors  of  the  various 
companies,  and  control  the  various  companies,  corpora- 
tions and  partnerships  and  the  trustees  for  the  various 
corporations,  companies  and  partnerships  were  em- 
powered to  collect  and  receive  all  the  earnings  of  the 
various  companies  and  place  all  the  earnings  in  a  common 
fund  and  the  dividends  were  to  be  divided  according  to 

1.  Chicago  Gas  Light  Co.  vs.  People's  Gas  Co.,  121  111.,  545.    See 

also  Western  Union  Tel.  Co.  vs.  Am.  Union  Tel.  Co.,  65  Ga., 
160. 

2.  State,  Snyder  vs.  Portland  Natural  Gas  &  Oil  Co.,  153  Ind.,  483; 

53  N.  E.,1089. 

3.  San  Antonio  Gas  Co.  vs.  State,  22  Tex.  Civ.  App.,  118;  54 

S.  W.,289. 


112  Oil  Monopolies. 

the  holding's  of  each  of  the  trust  certificates,  such  an 
agreement  is  void  as  creating  a  monopoly  to  control 
production  and  prices  of  petroleum,  and  is  void  at  com- 
mon law.1  And  where  such  an  agreement  is  made  by  all 
or  a  majority  of  the  stockholders  of  all  the  concerns,  as- 
sent to  such  an  agreement  by  them  so  the  business  of  the 
company  is  affected,  is  the  same  as  if  done  by  a  resolu- 
tion of  the  board  of  directors  and  such  an  agreement  is 
ultra  vires  of  the  corporation  and  against  public  policy 
and  was  done  in  their  individual  capacity  for  the  pur- 
pose of  covering  up  the  real  nature  of  the  transaction. 
The  assent  will  be  regarded  as  an  act  of  the  corporation 
itself,  because  it  is  but  a  fiction  of  the  law  that  a  corpo- 
ration has  a  separate  and  independent  existence  apart 
from  the  persons  who  compose  the  corporation,  and  such 
a  fiction  applies  only  for  convenience  in  the  transaction 
of  business  by  the  corporation  and  persons  who  do  busi- 
ness with  such  corporation,  and  when  there  is  no  reason 
why  the  fiction  applies  the  fiction  will  be  disregarded, 
because  it  is  not  within  the  reason  and  policy  of  the  law 
that  it  should  apply.2  It  is  a  rule  of  law, — "that  a  fiction 
of  law  shall  never  be  contradicted,  so  as  to  defeat  the 
end  for  which  it  was  invented,  but  for  every  other  pur- 
pose it  may  be  contradicted."3  So  where  a  limited  part- 
nership was  organized  for  the  production  and  marketing 
of  petroleum,  and  was  a  rival  of  the  "Standard  Oil  Trust," 
and  a  stockholder  of  the  "Standard  Oil  Trust"  bought  a 
majority  of  the  stock  in  the  limited  partnership  for  the 
purpose  of  getting  control  of  the  limited  partnership,  so 
that  the  same  may  be  operated  in  the  interest  of  the 
"Standard  Oil  Trust,"  the  purchaser  of  the  stock  in  the 
limited  partnership  can  have  no  relief  in  equity  where 

1.  State  ex.  rel.  Watson  vs.  Standard  Oil  Co.,  49  Ohio  St.,  137;  30 

N.  E.,279;  15  L.  R.  A.,  145. 

2.  State  ex.  rel.  Watson  vs.  Standard  Oil  Co.,  49  Ohio,  137;  Peo- 

ple of  N.  Y.  vs.  North  Sugar  Ref.  Co.,  54  Hun.,  355;  2  L. 
R.  A.,  33;  note,  Same  vs.  Same,  121  N.  Y.,  582;  Tyler  on 
Corporation,  Sect.  51;  Morawetz  Corporation,  Sect.  227. 

3.  Johnson  vs.  Smith,  2  Burr,  962.    See  also  Richardson  vs.  Buhl, 

77  Mich.,  63. ;  6  L.  R.  A.,  457;  State  vs.  Standard  Oil  Co., 
supra. 


Oil  Monopolies.  113 

the  other  members  of  the  partnership  refuse  to  recog- 
nize his  rights  as  a  stockholder  and  refuse  to  elect  the 
purchaser  as  a  member  of  the  partnership  and  the  pur- 
chaser has  no  rights  as  a  member  unless  so  elected  under 
a  rule  of  the  partnership  and  the  rule  is  in  conformity 
with  a  statute  of  the  state  where  the  partnership  was 
organized  and  doing  business.  * 

SEC.  22.  THINGS  WHICH  A  GAS  COMPANY  MAY  SELL 
TO  ITS  CUSTOMERS. — A  corporation  may  deal  in  things 
which  promote  the  general  interest  of  the  corporation, 
and  it  will  not  be  beyond  the  scope  of  its  powers.  So 
where  a  company  is  organized  to  manufacture  and  sup- 
ply illuminating  gas  and  distribute  the  same,  such  com- 
pany may  deal  in  heaters,  radiating  metals  and  appli- 
ances which  are  used  in  the  consumption  of  gas.2 

1.  Carter  vs.  Producers  Oil  Co.,  182  Pa.,  551;  39  L.  R.  A.,  100. 

2.  Malone  vs.  Lancaster  Gas  Light  &  Fuel  Co.,  182  Pa.,  309;  37 

Atl.,  932. 


LIENS. 


CHAPTER     X. 

SECTION  1.  LIENS  FOR  SINKING  WELLS. — The  right 
to  a  lien  for  labor  and  materials  furnished  in  the  sinking 
of  oil  and  gas  wells  and  for  repairs  placed  on  the 
machinery  has  been  held  to  lie  under  the  general  me- 
chanic's lien  law,  which  law  provided,  that  when  any 
person  performs  labor  or  furnishes  material  for  the 
erection  of  any  house,  mill,  manufactory,  or  other  build- 
ing or  other  structure,  he  is  entitled  to  a  lien.  The  word 
structure  is  broad  enough  to  include  oil  and  gas  wells  and 
a  lien  attaches  for  labor  done  and  materials  furnished 
in  the  construction  of  an  oil  or  gas  well.  *  The  same  rule 
has  been  applied  when  a  well  was  constructed  with  the 
view  of  furnishing  water  for  domestic  purposes  under  a 
statute  giving  a  lien  for  the  erection  or  construction  of 
any  building  or  improvement  on  the  land,  for  labor  and 
material,  and  in  the  erection  and  construction  of  such 
building  or  improvement  and  such  lien  to  attach  both  to 
the  improvements  and  the  land.2  A  lien  for  labor  and 
material  furnished  has  been  denied  where  a  water  well 
was  sunk  under  a  statute  giving  a  lien  for  labor  and 
material  furnished  in  the  erection  of  any  house,  mill, 
manufactory  or  building  or  appurtenances.8 

SEC.  2.  LEASE  HOLD. — LIEN  ON  SUCH  ESTATE. — 
A  conveyance  to  a  person,  his  heirs  and  assigns,  for 
the  purpose  of  drilling  or  mining  for  oil  for  a  period  of 

1.  Haskell  vs.  Gallagher,  20  Ind.  App.,  224;  50  N.  E.,  485;  67 

Am.  St.  R.,250.' 

2.  Hoppes  vs.  Boie,  105  la.,  648;  75  N.  W.,  495. 

3.  Omaha  Consolidated  Vinegar  Co.  vs.  Burns,  49  Neb.,  229;  68 

N.  W.,  492. 


When  Lien  Attaches.  115 

twenty  years  conveys  such  a  right  that  the  leasehold 
estate  will  be  liable  for  material  furnished  in  keeping-  in 
repair  appliances  connected  or  used  on  such  leasehold 
estate  for  the  purpose  of  taking  oil  from  the  land  cov- 
ered by  such  lease.  f  So  where  a  lease  provided  that  the 
lessee  may  enter  the  property  leased  and  bore  and  take 
oil  from  the  land  leased,  the  liens  of  laborers  and  for 
the  materials  furnished  for  the  equipment  of  a  rig  for 
operations  will  attach  to  such  equipment  and  to  the  les- 
see's interest  in  the  land.1  So  where  a  statute  provides 
that  when  the  liens  of  several  persons  attach  to  the 
same  work  done,  neither  shall  have  priority  over  anoth- 
er, the  sinking  of  a  gas  well  is  within  the  lien  law  and 
the  persons  having  the  liens  will  share  proportionally 
in  the  well  property. 8 

SEC.  3.  WHEN  LIENS  WILL  NOT  ATTACH. — EXTENT 
OF  LIEN. — A  lien  will  not  attach  to  land  when  a  person 
drills  a  hole  in  the  ground  for  the  purpose  of  finding  out 
whether  minerals  exist  under  the  land  in  such  quantities 
as  will  warrant  the  expenditure  of  money  for  the  pur- 
pose of  mining  them,  where  the  statute  provides  that 
any  person  is  entitled  to  a  lien  who  performs  labor  in 
excavating  any  land.4  A  lien  attaches  only  to  the  inter- 
est of  the  lessee  and  the  lessor's  interest  is  not  affected 
when  labor  and  material  are  furnished  the  lessee. 5  The 
lien  will  attach  to  the  interest  of  the  lessee  in  the  sur. 
face  when  the  lessee  has  a  right  to  use  part  of  the  surface 
for  the  purpose  of  carrying  on  mining  operations,6  but  a 
lien  does  not  attach  where  no  minerals  are  found.7 

1.  McElwaine  vs.  Brown,  --  Pa.,  — ;  11  AtL,  453;  Thomas  vs. 

Smith,  42  Pa.,  68. 

2.  Acklin  vs.  Waltermeier,  19  Ohio  Cir.  Ct.,  372. 

3.  Divine  vs.  Taylor,  (Ohio  C.  C.),  1  Ohio  Dec.,  153. 

4.  Calvin  vs.  Weimer,  64  Minn.,  37;  65  N.  W.,  1079. 

5.  Welkins  vs.  Abell,  26  Colo.,  462;  58  Pac.,  612;    Harmon  vs. 

Allen,  75  111.,  255. 

6.  Rogers  vs.  C.  C.  C.  M.  Co.,  78  Mo.  App.,  114. 

7.  Blundert  vs.  Kreiser,  81  Wis.,  174;  51  N.  W.,  324. 


116  Lien  on  Oil  Refineries. 

SEC.  4.  OIL  REFINERY — APPLIANCES. — A  mechan- 
ic's lien  will  attach  to  an  oil  refinery  where  timber  was 
furnished  in  the  erection  of  the  building"  under  a  statute 
which  does  not  specify  any  buildings,  but  makes  the 
lien  applicable  to  buildings  generally.1  So  when  coal 
cars  are  furnished  to  a  mine  for  the  purpose  of  trans- 
porting the  coal  from  where  the  same  was  mined  to  the 
mouth  of  a  shaft,  the  cars  are  an  "improvement"  on  land 
under  a  statute  giving1  a  material  man  a  lien  on  the  land 
for  any  "building1  or  improvement  on  the  land,"  and  the 
court  in  construing1  the  word  material  in  such  a  statute, 
said:  "Material,  however,  is  a  word  of  such  general 
import  that  there  was  no  difficulty  in  making  the  word 
cover  cars  furnished  a  coal  mine  so  as  to  give  a  material 
man  a  lien  on  the  mine."2  Material  includes  everything" 
of  which  anything1  is  made. 8  So  where  labor  and  mate- 
rial are  furnished  in  the  construction  of  pipes  extending" 
from  the  main  building1  through  the  streets  of  a  city,  such 
as  pipes  for  the  transportation  of  oil  or  gas  or  water,  a 
lien  will  attach  to  the  main  building1  or  plant,  as  the  pipe 
lines  and  buildings  are  but  one  system,  although  the 
labor  and  material  were  only  furnished  for  the  construc- 
tion of  the  pipe  lines. 4 

SEC.  5.  OIL  FURNISHED  TO  RUN  MACHINERY. — 
Under  a  statute  which  provides  that  every  person  who, 
as  principal,  contractor,  architect,  etc.,  performs  any 
work,  or  furnishes  any  material  in  or  about  the  erection, 
construction,  protection  or  removal  of  any  dwelling" 
house  or  other  building  or  machinery  erected  or  con- 
structed, so  as  to  be  or  become  part  of  the  freehold,  upon 
which  it  is  so  situated,  shall  have  a  lien  for  such  labor 

1.  Short  vs.  Miller,  120  Pa.,  470;  14  Atl.,  374. 

2.  Central  Trust  Co.  vs.  Sheffield  &  B.  Coal  &  Iron  Co.,  42  Fed. 

R.,  106. 

3.  Central  Trust  Co.  vs.  Sheffield  &  R.  Iron  R.  Co.,  supra. 

4.  Stegner  vs.  Refrigerating  Co.,  86  Tenn.,  453;  11  L.  R.  A.,  580; 

Bodger  Lumber  Co.  vs.  Marion,  etc.,  48  Kan.,  182;  15  L. 
R.  A.,  652;  McNeal  Pipe  &  Foundry  Co.  vs.  Rowland,  111 
N.  C.,  615. 


Lien  of  Laborers.  117 

and  material,  a  person  who  furnishes  lubricating'  oil  and 
which  is  actually  used  in  operating"  mill  machinery  for 
the  protection  of  such  machinery  against  friction  and  to 
preserve  it  from  injury  has  no  lien  for  the  oil  so  fur- 
nished, since  the  statute  applies  only  when  the  material 
enhances  the  value  and  becomes  a  part  of  the  machinery 
and  everything1  used  in  operating-  machinery  and  which 
tends  to  preserve  it  is  not  embraced  within  the  terms  of 
such  a  statute. r 

SEC.  6.  LIEN  OF  LABORERS  AND  MATERIAL,  MEN — EX- 
TENT OF  THE  LIEN. — Persons  employed  to  drill  gas  wells 
and  to  haul  piping1  to  be  used  in  a  gas  well  will  be  enti- 
tled to  a  preferred  lien,  under  a  statute  which  provided: 
"That  all  debts  due  any  person  for  manual  and  mechan- 
ical labor  shall  have  a  preferred  claim  in  all  cases  against 
any  individual,  corporation  or  joint  stock  company  when 
the  property  thereof  shall  pass  into  the  hands  of  a  re- 
ceiver or  an  assignee,  in  the  distribution  and  payment  of 
debts,  and  such  receiver  or  assignee  shall  first  be  required 
to  pay  in  full  all  debts  due  for  manual  or  mechanical 
labor  before  paying  any  other."  The  property  must  be 
posessed  by  the  debtor  at  the  time  it  passes  into  the 
hands  of  a  receiver  or  assignee,  and  if  such  property 
has  been  assigned  to  satisfy  a  valid  pre-existing  debt  and 
there  is  no  fraud  in  the  transaction,  although  the  prop- 
erty is  thereafter  placed  in  the  hands  of  a  receiver,  the 
laborer's  lien  is  lost  under  this  statute.2  So  where  a  per- 
son was  employed  to  superintend  the  construction  of  pipe 
lines  of  a  corporation  organized  for  the  purpose  of  supply- 
ing consumers  with  natural  gas,  and  as  such  superintend- 
ent he  had  full  supervision  of  digging  trenches,  laying 
pipes,  and  had  authority  to  hire  and  discharge  the  men  em- 
ployed to  do  the  work,  and  the  corporation  passed  into 
the  hands  of  a  receiver  and  its  property  was  sold,  the 
superintendent  was  held  to  come  within  the  terms  "la- 
borer or  employee,"  and  was  to  all  intents  and  purposes 

1.  Standard  Oil  Co.  vs.  Lane,  75  Wis.f  636;  44  N.  W.,  644;  7  L. 

R.  A.,  191. 

2.  McElwaine  vs.  Hosey,  135  Ind.,  481;  35  N.  E.,  272. 


118  Particular  Liens. 

a  laborer  and  entitled  to  a  preferred  claim  for  wages 
earned. l  Where  a  laborer's  lien  is  defeated  because  the 
property  of  the  parties  for  whom  the  labor  was  performed 
and  the  property  on  which  the  work  was  performed  passed 
into  the  hands  of  a  purchaser  to  discharge  a  bon  a  fide  debt, 
the  person  who  performed  the  labor  may  have  a  lien  on 
the  property  under  the  general  mechanic  lien  law  which 
provided:  "That  the  contractors,  and  sub-contractors, 
laborers,  and  all  persons  performing  labor,  furnishing 
material  or  machinery,  for  erecting,  altering,  etc.,  any 
house,  mill,  manufactory,  or  other  building,  bridges, 
reservoirs  *  *  *  or  other  structures  may  have  a 
lien  separately  or  jointly  upon  the  house,  mill,  manu- 
factory or  other  building,  bridge,  reservoir,  etc.,  or  other 
structure  which  they  may  have  erected,  altered  or  re- 
paired or  removed  for  which  they  may  have  furnished 
material  or  machinery  of  any  description  and  on  the 
interest  of  the  owner  of  the  lot  of  land  on  which  it 
stands  or  work  which  it  is  connected  to  the  extent 
of  the  value  ot  the  labor  done  or  material  or  machin- 
ery furnished  or  both,  and  all  claims  of  wages  for 
mechanics  or  laborers  employed  in  or  about  any  shop, 
mill,  wareroom  or  manufactory  shall  be  a  first  lien  upon 
all  machinery,  tools,  stock  of  material  or  work  finished 
or  manufactured  and  located  in  and  about  the  shop,  etc., 
and  should  the  person,  firm  or  corporation  be  in  failing 
circumstances  the  above  mentioned  claims  shall  be  pre- 
ferred debts  whether  the  notice  of  the  lien  be  filed  or 
not."  The  derrick,  pipes,  casing  and  other  appliances 
were  held  to  come  within  the  term  "structures"  as  used 
in  the  statute  and  entitled  the  drillers  and  the  person 
engaged  hauling  pipe  to  be  used  in  the  gas  well  to  a  lien. 
The  gas  well  and  appliances  did  not,  however,  come  with- 
in the  terms  "shop,  mill,  wareroom  or  manufactory"  as 
used  in  the  last  part  of  the  section  quoted  and  which  was 

1.  Pendergast  vs.  Yandes,  124  Ind.,  139.  See,  also,  Capron  vs. 
Strout,  11  Nev.,  304;  Stryker  vs.  Cassidy,  76  N.Y,  50;  Flag- 
staff Silver  Min.  Co.  vs.  Cullins,  104  U.  S.,  176;  see  note  in 
Tod  vs.  Kentucky  Union  Ry.,  18  L.  R.  A.,  305. 


Lien  on  Gas  Plants.  119 

designed  to  protect  persons  working-  in  such  places.  So 
to  protect  the  lien  notice  was  required  to  be  filed  as  the 
statute  provided  in  another  section  and  the  drillers  and 
teamsters  who  had  not  filed  notices  of  their  claims  as 
the  statute  required  lost  their  lien  as  against  the  pur- 
chaser of  the  property.1  The  courts  of  Ohio  have  also_ 
held  that  laborers  and  material  men  may  have  a  lien 
under  the  mechanic  lien  law  of  that  state  for  putting 
down  an  oil  well.2 

SEC.  7.  LIEN  ON  GAS  PLANTS — WHEN  ENFORCED. — 
Where  a  contractor  made  an  agreement  with  a  gas  com- 
pany engaged  in  the  manufacture  of  gas  that  in  consid- 
eration of  the  sum  of  $1,000,  to  be  paid  on  the  completion 
of  the  work,  and  the  giving  of  two  notes  of  $700  each 
due  in  six  and  twelve  months,  the  contractor  would  place 
in  the  plant  a  certain  apparatus  that  would  manufacture 
gas  from  coal  and  crude  petroleum,  and  that  the  con- 
tractor would  operate  the  machinery  for  thirty  days  and 
instruct  the  superintendent  of  the  plant  for  the  same 
length  of  time  as  to  the  manner  of  operating  the  machin- 
ery, and  that  also  certain  patent  rights  would  be  assigned 
to  the  gas  company  to  be  used  in  the  town  in  connection 
with  the  gas  plant,  the  contractor  was  held  not  entitled 
to  a  lien  on  the  gas  plant  for  the  time  spent  in  instructing 
the  superintendent  and  for  the  patent  assigned  to  the 
company.3  The  lien  was  held  also  to  be  void  as  to  the  en- 
tire indebtedness  where  the  claim  for  a  lien  did  not  item- 
ize the  value  of  the  patent  right  and  the  services  rendered 
in  instructing  the  superintendent  of  the  gas  company, 
since  the  court  cannot  determine  the  extent  of  the  lien 
so  the  lien  is  void  as  to  the  whole  amount.4  In  such  a 
case  the  result  is,  "as  an  entire  contract  it  cannot  be 
enforced,  for  the  reason  no  lien  is  given  for  part  of  the 

1.  McElwaine  vs.  Hosey,  135  Ind.,  481;  35  N.JE.,  272. 

2.  Devine  vs.  Taylor  (Ohio  C.  C.),  1  Ohio  Dec.,  153. 

3.  Peatman  vs.  Center-vine  H.  &  P.  Co.,  105  la.,  1;  74  N.  W.,  689. 

4.  Peatman  vs.  Centerville  Heat  &  Power  Co.,  105  la.,  1;  74  N.W., 

689;   Morrison  vs.  Minat,  5  Allen,  403;   Dennis  vs.  Smith, 
38  Minn.,  694;  38N.W.,695. 


120  Lien  on  Oil  Tanks. 

labor  to  be  performed  under  the  contract.  On  the  other 
hand  the  contract  cannot  be  enforced  as  to  part  of  the 
labor  performed  for  which  a  lien  is  conferred  by  statute 
because  the  contract  is  entire  and  an  entire  contract  can 
not  be  apportioned  and  the  performance  of  it  enforced 
in  fragments."1  A  lien  will  be  enforced  against  the  en- 
tire plant  of  a  gas  company  where  a  certain  gas  appa- 
ratus was  put  in  by  a  contractor  to  be  used  in  connection 
with  the  plant  under  a  general  mechanic  lien  law.2  The 
rule  applicable  in  case  where  certain  appliances  are  fur- 
nished is  that  if  the  things  sold  are  affixed  to  such  works 
it  will  come  within  the  lien  law.3  So  where  a  pump  is 
attached  to  the  works  a  material  man  will  have  a  lien;4 
or  a  machine  for  the  generation  of  gas  used  in  connec- 
tion with  a  private  dwelling  and  connected  therewith  by 
means  of  pipes;5  and  where  pipes  through  the  streets  are 
firmly  connected  together  with  the  main  plant  the  pipes 
are  part  of  the  plant  and  the  material  man  who  furnishes 
the  pipes  has  a  lien  on  the  entire  plant  and  pipes  and  all 
will  be  sold  to  satisfy  the  lien.6  It  has  been  held,  how- 
ever, that  the  lien  for  pipes  which  were  used  over  a  large 
territory  will  not  be  of  any  effect  unless  the  claim  for  a 
lien  describes  the  lands  over  which  the  pipes  were  laid, 
and  where  the  claim  for  a  lien  only  described  the  lot  on 
which  the  plant  was  located  the  lien  will  be  effective 
only  against  the  pipes  laid  on  that  lot.7 

SEC  .8.  LIEN  FOR  THE  CONSTRUCTION  OF  OIL  TANKS. 
— Material  men  and  laborers  will  be  entitled  to  a  lien 
against  an  oil  refining  company  for  the  construction  of 

1.  Adler  vs.  World's  Pastime  Ex.  Co.,  126  111.,  373. 

2.  Bristol  Goodson  Electric  Light  &  P.  Co. vs.  Bristol  Gas  Electric 

&  P.  Co.,  99  Term.,  387;  42  S.W.,  19;  Rawlings  vs.  New 
Memphis  Gas  Light  Co.,  105  Term.,  268;  60  S.  W.,  206. 

3.  Goss  vs.  Helbing,  77  Cal.,  190;  19Pac.,277;  Donahue  vs.  Com- 

astie,  21Cal.,80. 

4.  Goss  vs.  Helbing,  77  Cal.,  190;  19  Pac.,  277. 

5.  Light  Co.  vs.  Gill,  14  Pa.  Co.  Ct.,  6. 

6.  National  Foundry  &  Pipe  Works  vs.  Howland,  111  N.  C.,  615; 

16  S.  E.,857;  20  L.  R.  A.,  743;  National  Foundry  &  Pipe 
Works  vs.,  Oconto  Water  Co.,  52  Fed.  R.,  43. 

7.  Enfaula  Water  Co. vs.  Addyston  Water  Co., 89  Ala.,  522; 8  So.25. 


Waiver  of  Lien.  121 

oil  tanks  in  connection  with  an  oil  refinery  and  used  as 
part  and  in  connection  with  such  refinery.1  A  person 
was  also  allowed  to  enforce  a  lien  for  a  tank  furnished 
to  a  purchaser  where  it  appeared  that  the  tank  was  man- 
ufactured at  a  factory  and  the  parts  were  shipped  to  the 
place  to  be  put  up  and  the  parts  so  shipped  were  placed 
together  by  workmen  by  means  of  hoops,  oakum  and 
pitch,  and  the  tank  was  placed  on  a  broad  platform  which 
rested  on  the  ground  and  the  tank  had  a  capacity  of  about 
250  barrels.  The  tank  was  held  to  become  a  permanent 
fixture  and  part  of  the  real  estate  and  the  general  me- 
chanic lien  law  included  such  a  structure.3  An  oil  tank 
was  held  not  to  come  within  the  mechanic's  lien  law  of 
Pennsylvania  in  force  in  Philadelphia.8 

SEC.  9.  LIEN  WHEN  WAIVED. — A  mechanic's  lien  was 
held  not  to  be  waived  under  the  Ohio  statute  where  a 
firm  was  employed  to  construct  oil  tanks  used  in  con- 
nection with  an  oil  refinery,  and  upon  completion  of  the 
work  the  creditor  did  not  have  the  money  to  pay,  so  cer- 
tain notes  were  given  for  the  debt,  not  in  satisfaction 
of  the  debt  but  to  give  the  oil  company  time  to  pay  and 
to  enable  the  lien  creditor  to  raise  the  money  on  the  notes 
by  endorsing  them  to  a  bank.4  So  where  a  contractor  who 
did  the  work  and  furnished  the  material  put  in  a  certain 
gas  apparatus,  for  which  he  was  entitled  to  a  lien  and  the 
appartus  was  placed  in  the  plant  of  a  gas  company  en- 
gaged in  the  manufacture  and  sale  of  fuel  and  illumina- 
ting gas,  and  on  the  completion  of  the  work  he  took  certain 
mortgage  bonds  as  security  for  a  part  of  the  debt,  the 
bonds  were  held  not  to  effect  the  rights  of  the  contractor 
to  a  lien  where  the  bonds  were  not  taken  in  satisfac- 
tion of  the  debt,  but  there  was  a  presumption  of  law  that 
the  bonds  were  taken  in  satisfaction  of  the  debt  to  the 

1.  Standard  Oil  Co.  vs.  Sowden,  55  Ohio,  332;  45  N.  E.,  320. 

2.  Parker  Land  &  Improvement  Co.  vs.  Reddick,  18  Ind.  App., 

616;  47  N.  E.,848. 

3.  Seidus  Co.  vs.  Lewis  Bros.,  7  Pa.  Co.  Ct.,  80. 

4.  Standard  Oil  Co.  vs.  Sowden,  55  Ohio,  332;  45  N.  E.,  320;  Mc- 

Lean vs.  Wiley,  176  Mass.,  233;  57  N.E.,  347. 


122  Conflicting  Liens. 

amount  of  the  bonds  taken,  though  such  a  presumption 
may  be  overcome  by  evidence.  The  part  of  the  debt  for 
which  no  security  was  taken  was  not  affected. 1 

SEC.  10.  CONFLICTING  LIENS — CREDITORS. — A  me- 
chanic's lien  is  superior  to  that  of  a  judgment  creditor's 
acquired  after  the  mechanic's  lien  was  filed,  where  a  con- 
tractor put  in  a  certain  gas  generator  in  a  gas  plant  and 
for  which  he  was  to  receive  the  sum  of  $1,000  in  cash  and 
two  notes  of  $700  each,  due  in  six  and  twelve  months 
from  date,  and  no  cash  was  paid  and  no  notes  were  given 
on  the  completion  of  the  work.8  Nor  is  a  judgment  lien 
superior  to  that  of  a  mechanic's  lien  under  the  Iowa  stat- 
ute, which  provided  that  the  lien  shall  be  filed  within  a 
certain  time  and  in  case  the  lien  is  not  filed  within*  the 
time  specified  other  lien  creditors  will  have  a  preference 
where  the  lien  was  filed  some  time  after  the  time  speci- 
fied, but  no  judgment  was  recovered  until  about  a  year 
after  the  lien  was  filed,  as  the  lien  is  good  against  the 
owner  without  being  filed,  and  is  good  against  creditors 
who  acquire  no  lien  until  after  the  lien  is  filed.3  Under 
the  Ohio  statute  the  lien  is  valid  against  the  claims  of  a 
mortgagee  who  acquires  a  mortgage  on  an  oil  refinery 
after  the  construction  of  oil  tanks  used  in  connection  with 
the  oil  refinery.4  The  lien  is  not  effected  although  the  lien 
was  not  filed  or  sworn  to  by  the  lien  creditor  until  after 
the  assignment  of  notes  which  were  given  for  the  debt 
but  not  as  a  satisfaction,  where  the  statute  provided, 
that  "an  affidavit  containing  an  itemized  statement  of 
the  amount  and  value  of  such  labor,  machinery  or  ma- 
terial, with  all  credits  and  offsets  thereon,  a  copy  of  the 
contract  if  in  writing,  a  statement  of  the  amount  and 
times  of  payment  to  be  made  thereunder,  and  a  descrip- 

1.  Bristol  Goodson  Electric  Light  &  Power  Co.  vs.  Bristol  Gas, 

Electric  Light  &  Power  Co.,  99  Term.,  387;  42  S.  W.,  19. 

2.  Peatman  vs.  Centerville  Heat  &  Power  Co.,  105  la.,  1;  74  N. 

W.,689. 

3.  Peatman  vs.  Centerville  Heat  &  Power  Co.,  105  la.,  1;  74  N. 

W.,689. 

4.  Standard  Oil  Co.  vs.  Sowden,  55  Ohio,  332;  45  N.  E.,  320. 


When  Superior  to  Mortgage.  123 

tion  of  the  premises."  The  statute  did  not  require  the 
lien  claimant  to  state  "the  amount  due  and  owing"  to  him. 
"The  lien  is  taken  to  secure  the  indebtedness,  whether 
in  the  form  of  an  account  or  a  note,  will  remain  secured 
by  the  lien  until  paid."  "In  taking-  of  the  lien  it  makes 
no  difference  who  hold  or  own  the  notes,  and  as  the  notes 
were  not  accepted  as  payment,  *  *  *  the  partnership 
had  a  right  to  perfect  the  lien  to  secure  the  debt  and 
enforce  payment  of  them  by  the  foreclosure  of  the  me- 
chanic's lien  when  the  notes  were  returned  to  them  be- 
cause of  their  non-payment  by  the  oil  company  when 
due.1"  Under  the  Iowa  statute  liens  are  assignable  and 
may  be  sworn  to  by  the  assignor  before  the  assignment 
of  the  lien  and  filed  by  the  assignee.*  The  lien  attaches 
from  the  time  of  the  commencement  of  the  work  or  de- 
livery of  the  material,  and  the  claims  of  mechanics  and 
material  men  are  superior  to  those  of  all  claims  acquired 
thereafter.8  So  where  an  oil  company  was  engaged  in 
refining  oil  and  the  manufacture  of  its  various  products 
and  mechanics  were  employed  and  material  was  used  in 
the  construction  of  one  of  the  buildings,  and  a  lien  was 
filed  against  the  whole  plant,  which  included  many  build- 
ings and  fifty- five  acres  of  ground,  and  the  lien  was  fore- 
closed against  the  entire  plant,  the  lien  creditor's  claims 
were  held  to  be  superior,  on  a  division  of  the  proceeds, 
to  that  of  a  mortgage  on  the  plant  made  subsequent  to 
the  time  of  doing  the  work  and  furnishing  the  materials 
where  the  owner  had  a  right  to  designate  the  particular 
tract  of  ground  to  be  occupied  by  the  building  to  be  con- 
structed and  failed  to  do  so,  and  the  claimants  made  no 
objection  at  the  time  of  the  entry  of  the  decree  to  fore- 
close the  lien  that  the  claims  for  a  lien  included  land 
and  buildings  not  connected  with  the  building  which  had 
been  constructed.4  The  claims  of  laborers  for  wages 

1.  Standard  Oil  Co.  vs.  Sowden,  55  Ohio,  332;  45  N.  E.,  320. 

2.  Peatman  vs.  Centerville  Heat  &  Power  Co.,  105  la.,  1;  74  N. 

W.,  689. 

3.  Bristol  Goodson  Electric  Light  &  Power  Co.  vs.  Bristol  Gas, 

Electric  Light  &  Power  Co.,  99  Tenn.,  387;  42  S.  W.,  19. 

4.  Sicardi  vs.  Keystone  Oil  Co.,  148  Pa.,  639;  24  Atl.,  161. 


124  When  Mortgage  is  Superior. 

earned  the  three  months  previous  to  the  time  the  prop- 
erty of  one  who  employs  such  labor  is  placed  in  the  hands 
of  a  receiver  are  superior  to  that  of  a  chattel  mortgage  or 
any  other  claim  against  the  property,  except  such  neces- 
sary expenses  incurred  by  reason  of  the  receivership  and 
taxes,  where  the  property  was  used  in  connection  with  the 
business  in  which  the  laborers  were  employed,  and  the 
statute  gives  preference  in  such  cases,  although  the  chat- 
tel mortgage  was  made  before  the  work  was  done  for 
which  the  preference  is  claimed. J 

SEC.  11.  WHEN  ARE  MORTGAGES  SUPERIOR  TO  CLAIMS 
UNDER  A  MECHANIC'S  LIEN  LAW. — Mechanic's  liens  are 
inferior  to  the  claims  of  a  mortgagee  of  all  the  property 
of  a  corporation  engaged  in  the  manufacture  and  sale  of 
gas  where  the  material  was  furnished  and  the  work  per- 
formed after  the  mortgage  was  executed  and  filed  for 
record,  although  the  contract  to  furnish  the  material  and 
perform  the  work  was  made  before  the  mortgage  was 
filed  for  record,  but  no  work  was  done  or  material 
furnished  or  placed  on  the  premises  of  the  gas  com- 
pany until  after  the  mortgage  was  filed  for  record  and 
the  mortgagee  was  given  no  notice  that  the  work  was 
to  be  done.2  In  this  case  the  person  who  held  the  mort- 
gage was  a  director  in  the  corporation  and  the  mort- 
gage was  given  to  secure  a  preexisting  indebtedness 
due  the  director  from  the  corporation,  and  a  sale  of  the 
property  was  made  under  the  mortgage  and  purchased 
by  the  director  and  others.  The  mortgage  and  sale  were 
assailed  by  the  stockholders  and  material  men  and  me- 
chanics, but  the  court  held  that  the  director  occupied 
the  same  position  toward  the  corporation  as  any  stock- 
holder and  as  no  fraud  or  collusion  was  shown  the  mort- 
gage and  sale  were  valid  against  objection  of  stockholders 
and  lien  creditors.  The  court  in  deciding*  the  case  cited 
the  case  of  the  Twin  Lick  Oil  Co.  v.  Marbury*  as  upholding 

1.  Trust  vs.  Miami  Oil  Co.,  10  Ohio  C.  D.,  372. 

2.  Rawlings  vs.  New  Memphis  Gas  Light  Co.,  105  Tenn.,  268;  60 

S.  W.,206. 

3.  Twin  Lick  Oil  Co.  vs.  Marbury,  91  U.  S.,  329. 


Mortgage  to  Director  of  Corporation.  125 

the  right  of  the  director  to  take  the  mortgage  and  then 
become  a  purchaser  at  the  sale.  The  case  to  which  the 
court  referred  was  where  a  corporation  was  engaged  in 
the  production  and  vending  of  pretroleum,  and  when  it 
became  embarrassed  the  corporation  mortgaged  its  prop- 
erty to  a  stockholder  and  director,  and  when  the  corpo- 
ration failed  to  pay  the  debt  the  mortgagee  sold  the 
the  property  under  a  power  of  sale  contained  in  the  mort- 
gage and  became  a  purchaser  of  the  property  through 
his  agent  at  the  sale,  and  an  action  was  brought  by  a 
stockholder  to  set  aside  the  sale  because  the  director 
occupied  confidential  relations  toward  the  corporation 
and  its  stockholders,  so  he  could  not  take  a  mortgage 
and  become  a  purchaser  at  his  own  sale.  The  court  held 
that  the  sale  was  voidable  if  proceedings  were  begun  in 
apt  time,  but  at  the  time  of  the  sale  the  property  was 
nonproductive  and  was  at  that  time  a  losing  venture  and 
that  the  stockholders  failed  to  pay  the  assessments  made 
upon  their  stock  to  keep  it  a  going  corporation,  and  that 
after  the  sale  was  made  the  purchaser  expended  money 
in  making  a  survey  of  the  land  and  that  he  discovered 
by  the  survey  that  a  productive  oil  well  was  on  the  land 
operated  by  third  persons  and  that  others  were  drilled, 
and  that  by  his  efforts  and  energy  as  well  as  his  money 
he  made  it  a  profitable  venture,  the  stockholders  were 
held  to  have  ratified  the  sale  by  postponing  action  for 
four  years.  The  action  may  be  in  apt  time  if  the  prop- 
erty was  real  estate  with  a  fixed  unchangeable  value,  but 
where  the  property  sold  consists  of  oil  lands,  the  value 
of  such  lands  is  purely  speculative  as  the  property  may 
be  worth  thousands  of  dollars  today  and  a  few  months 
later  the  property  may  be  valueless,  and  where  there  is 
no  fraud  in  the  transaction  a  suit  is  barred  if  not  brought 
in  apt  time.  Other  courts  hold,  however,  that  the  officers 
of  a  corporation  when  insolvent  cannot  acquire  a  prefer- 
ence against  unsecured  creditors.  Thus,  where  a  com- 
pany was  engaged  in  refining  petroleum  and  in  the  man- 
ufacture of  its  products  assigned  mortgage  bonds  on  the 
plant  to  the  president,  who  was  one  of  the  directors,  and 


126  Lien  on  Leased  Land. 

the  bonds  were  assigned  and  sold  by  him  to  a  third  per- 
son and  the  property  was  placed  in  the  hands  of  a  re- 
ceiver and  sold  on  the  foreclosure  of  mechanic's  liens,  in 
a  distribution  of  the  assets  derived  from  the  sale  after 
satisfying1  the  mechanic's  liens,  the  court  decided  that  the 
holder  of  the  bonds  had  no  claim  superior  to  that  of  un- 
secured creditors.  The  court  said:  "If,  on  the  discovery 
of  the  insolvency  of  the  corporation,  its  officers  were  at 
liberty  to  appropriate  its  entire  assets  in  satisfaction  of 
their  demands  against  it  outside  parties  dealing1  with  it 
would  be  entirely  devoid  of  protection.  The  law  does 
not  intend  or  allow  such  appropriation  by  persons  united 
with  the  management  of  the  corporation,"  and  such  offi- 
cers cannot  obtain  a  preference  as  against  creditors.1 
There  are  many  cases  which  hold  that  insolvent  corpo- 
rations cannot  give  a  preference  to  their  officers  or  deal 
with  the  property  as  strangers  would.2 

SEC.  12.  OIL  AND  GAS  WELLS  OR  GAS  PLANTS  ON 
LEASED  LAND — FORFEITURE  OP  LEASE — EFFECT  ON 
LIEN. — A  lien  was  allowed  a  person  on  land  leased 
for  the  purpose  of  drilling  for  oil  and  gas,  for  the  pro- 
duction of  the  oil  and  gas  where  such  person  furnished 
material  for  the  construction  of  a  derrick  to  be  used  in 
putting  down  wells  and  performed  the  labor  thereon.8 
The  lien  creditor  was  entitled  to  a  lien  although  the 
lease  provided  that  "in  case  no  well  is  completed  within 
sixty  days  from  the  date  thereon  the  grant  shall  be  null 
and  void  unless  the  second  party  thereafter  pay  at  the 
rate  of  $2.00  per  day  each  day  said  completion  is  de- 
layed," and  the  lien  creditor  did  not  show  that  a  well  was 

1.  Sicardi  vs.  Keystone  Oil  Co.,  149  Pa.,  139;  24  Atl.,  163. 

2.  Olney  vs.  Conaticut  Land  Co.,  16  R.  I.,  597;  5  L.  E.  A.,  361; 

Rouse  vs.  Merchant  National  Bank,  46  Ohio,  493;  5  L.  R.  A., 
378;  Corey  vs.  Wadsworth,  99  Ala.  68;  23  L.  R.  A.,  618;  Hall 
vs.  Pioneer  Lumber  Co.,  113  N.  E.,  173;  21  L.  R.  A.,  560; 
Adams.,  etc.,  vs.  Deyette,  8  S.  D.,  119;  Lyons  Thomas 
Hardware  Co.  vs.  Perry  S.  M.  Co.,  88  Tex.,  43;  21  L.  R.  A., 
802,  and  note. 

3.  Montpelier  Light  &  Water  Co.  vs.  Stephenson,  22  Ind.  App., 

175;  53  N.  E.,  444. 


Forfeiture  of  Lease.  127 

completed  in  the  sixty  days  or  that  the  $2.00  per  day 
was  paid,  because  the  clause  in  the  lease  was  one  of  for- 
feiture and  the  lessor  must  show  that  a  forfeiture  was 
declared  before  the  lien  attached.  The  lien  attached 
not  only  to  the  derrick  and  appliances  but  also  to  the 
well  drilled.1  So  where  a  gas  company  held  a  lease  on 
land  and  material  men  had  acquired  a  lien  on  the  premT 
ises  the  lien  was  held  to  cover  the  entire  interest  of  the 
lessee  in  the  premises,  but  the  lien  creditor  had  no  claim 
or  right  to  remove  the  fixtures  after  having  them  at- 
tached to  the  premises  and  his  only  remedy  was  against 
the  premises  and  fixtures  as  real  estate.* 

1.  Montpelier  Light  &  Water  Co.  vs.  Stephenson,  22  Ind.  App., 

175;  53  N.  E.,  444. 

2.  Chicago  Smokeless  Fuel  Gas  Co.  vs.  Lyman,  62  111.  App., 538. 


Right  to  Acquire   Land   for   Pipe   Lines. 
Power  of  Eminent  Domain. 


CHAPTER  XL 

SECTION  1.  RIGHT  OF  WAY  OVER  PRIVATE  LANDS — 
PAYMENT  OF  DAMAGES. — From  what  has  been  said  in 
a  preceeding  chapter  gas  and  oil  companies  engaged 
in  the  business  of  transporting  and  supplying  gas  and 
oil  to  the  public,  are  engaged  in  a  business  of  a  public 
nature,  the  same  as  a  railroad,  and  the  like  business.  So 
when  land  is  needed  for  the  purpose  of  laying  their  pipes, 
the  companies  and  corporations  engaged  in  the  business 
may  acquire  such  land  by  purchase,  or  through  condem- 
nation proceedings  on  the  payment  of  the  value  of  the 
land  and  damages  occasioned  by  the  taking  of  such  land. 
Where  the  land  is  acquired  by  condemnation  by  com- 
panies and  corporations,  the  damages  must  be  paid  or 
secured  before  a  pipe  line  can  be  laid  on  the  lands  of  a 
private  owner;1  but  where  condemnation  proceedings 
are  instituted  for  the  purpose  of  obtaining  lands  for  a 
pipe  line,  the  title  vests  in  such  company  on  the  report 
of  the  commissioners  to  assess  the  damages  and  the  pay- 
ment of  the  award  under  the  Indiana  statutes,  although 
the  land  owner  takes  an  appeal  on  the  amount  of  dam- 
ages awarded.2 

SEC.  2.  CONDITION  OF  THE  GRANT — RESTRICTION 
IMPOSED  ON  THE  LAND  OWNER  BY  THE  PARTY  ACQUIR- 
ING THE  RIGHT  OF  WAY. — Where  a  gas  company  acquires 
a  right  of  way  through  the  lands  of  a  private  owner  and 
the  owner  stipulates,  in  the  conveyance  to  the  company, 

1.  Sterling's  Appeal,  111  Pa.,  35. 

2.  Manufacturers'  Nat.  Gas  Co.  vs.  Leslie,  Ind.,  49  N.  E.,  946. 


Right  of  Way  for  Pipe  Lines.  129 

that  the  company  in  laying-  its  pipes  shall  place  them 
two  feet  below  the  surface,  the  company  is  bound  to 
place  the  pipes  as  the  deed  provides,  because  the  provi- 
sion in  the  grant  is  a  condition  precedent  to  the  use  of  the 
land  for  a  pipe  line,  and,  when  a  company  lays  its  pipes 
at  a  less  depth,  the  land  owner  may  enjoin  the  company, 
from  using-  the  pipes,  and  the  mere  fact  that  preventing 
the  gas  company  from  using-  the  pipes  might  be  incon- 
venient to  the  public  will  not  bar  his  rig-ht  to  an  injunc- 
tion. J  An  oil  transportation  company  cannot  enter  into 
a  contract  with  the  owner  of  the  land  from  whom  it  ac- 
quires a  right  of  way  so  as  to  bar  others  from  acquiring 
a  right  of  way  or  impose  burdens  on  the  subsequent  pur- 
chase of  the  lands.  Thus  where  an  oil  transportation 
company  entered  into  an  agreement  with  a  land  owner, 
whereby  the  land  owner  for  a  valuable  consideration 
granted  to  the  company  and  their  assigns  the  exclusive 
right  of  way  and  privilege  to  construct  and  maintain 
one  or  more  lines  of  tubing  for  the  transportation  of  oil 
through  and  under  a  tract  of  land  containing  2000  acres, 
and  the  oil  produced  on  the  land  would  be  transported 
through  its  pipe  line,  which  agreement  was  signed,  sealed 
and  delivered  by  the  land  owner. 2 

1.  It  was  held:  "By  the  true  construction  of  this  in- 
strument it  operated  first  as  a  grant  of  a  right  of  way  for 
such  tubing  for  the  transportation  of  oil  through  said 
tract  of  land,  and  secondly  it  was  intended  to  operate  as 
a  covenant,  whereby  the  land   owner  agreed,  that  he 
would  not  himself  transport  oil  from  or  through  this  tract 
of  land,  nor  grant  rights  of  way  to  any  other  person  or 
company  to  lay  tubes  for  the  transportation  of  oil  through 
said  tracts  of  land,  whether  the  oil  was  produced  on  said 
tract  of  land  or  not." 

2.  Such   agreement  was  valid  and  binding  on  the 
land- owner  and  his  assigns,  so  far  as  it  operated  as  a 

1.  Carothers  vs.  Philadelphia  Co.  (Pa.  C.  P.),  23  Pitts.  L.  J.  N.  S., 

191. 

2.  West  Virginia  Transportation  Co.  vs.  The  Ohio  River  Pipe 

Line  Co.,  22  W.  Va.,  600. 


130  Restraint  on  Land  Oivner. 

grant  of  right  of  way  for  such  tubing  through  said  tract 
of  land,  but  so  far  as  it  was  intended  to  operate  as  a 
covenant,  that  the  land-owner  would  not  himself  trans- 
port oil  from  or  through  said  tract  of  land  nor  grant 
rights  of  way  to  any  other  persons  or  company  to  lay 
tubes  for  the  transportation  of  oil  through  said  tract  of 
land  whether  the  oil  was  produced  upon  it  or  not,  this 
agreement  was  inoperative,  null  and  void  as  contrary  to 
public  policy,  being  an  attempt  to  impose  an  unreason- 
able restraint  upon  trade. 

3.  As  a  general  rule  any  trade  or  business  may  legally 
have  imposed  on  it  by  contract  a  partial  restraint,  as 
the  extent  of  territory,  over  which  it  is  permitted  to  ex- 
tend.    Such  restraint,  when  valid,  varies  with  the  char- 
acter of  the  trade  or  business.     In  some  sorts  of  trade  or 
business  it  may  be  a  large  extent  of  country,  hundreds  of 
miles  in  dimensions,  in  which  a  party  may  contract  not 
to  carry  on  his  business;  but  in  other  sorts  of  business 
the  restraint  would  not  be  valid,  if  it  were  attempted  by 
the  contract  to  extend  it  beyond  the  bounds  of  a  single 
town;  and  there  are  some  sorts  of  business,  which  the 
law  will  not  allow  to  be  restricted  at  all  by  contract. 

4.  Whenever  the  legislature  by  statute  law  has  au- 
thorized any  person  or  corporation  to  condemn  the  lands 
of  others  in  order  to  carry  on  its  business,  the  courts  will 
regard  this  as  a  legislative  declaration,  that  this  charac- 
ter of  business  is  such,  as  that  the  public  has  so  great 
and  direct  an  interest  in,  that  the  courts  must  hold  it  as 
contrary  to  public  policy  to  permit  any  restrictions  of 
it  by  private  contract. 

5.  A  contract,  by  which  an  exclusive  right  of  way  is 
granted  through  any  land,  however  small  the  parcel,  is 
void,  so  far  as  the  right  is  attempted  to  be  made  exclu- 
sive, as  contrary  to  public  policy  and  as  in  direct  conflict 
with  the  State's  right  of  eminent  domain. 

6.  A  landlord  may  by  contract  under  seal  impose  on 
the  land,  which  he  leases,  burdens,  which  will  not  only 
be  binding  on  the  tenant  but  also  on  sub-tenants,  they 
being  covenants  real  running  with  the  land.    But  except 


Damages  for  Land  Taken.  131 

between  landlord  and  tenant  no  burdens  can  be  imposed 
on  the  lands  by  any  covenant  of  the  owner,  which  will  run 
with  the  land  and  bind  any  grantee  of  the  land;  for  such 
covenants  are  personal  and  are  not  covenants  real  run- 
ning- with  the  land. 

7.  An  agreement  by  a  land  owner  that  the  products 
of  his  land  shall  be  transported  to  market  by  a  certain 
common  carrier  is  not  a  covenant  real  and  does  not  run 
with  the  land  or  bind  any  subsequent  purchaser  of  the 
land. 

8.  A  court  of  equity  would  not  enforce  the  perform- 
ance of  such  covenants  by  a  subsequent  purchaser  of  the 
land,  though  he  bought  the  land  with  full  notice  of  the 
existence  of  such  covenant. 

SEC.  3.  DAMAGES  FOR  TAKING  LAND — PROSPECTIVE 
DAMAGES  FROM  EXPLOSIONS  AND  FIRES  NOT  ALLOWED. 
— In  estimating  the  damages  in  the  condemnation  of  land 
for  a  pipe  line  for  the  transportation  of  natural  gas,  the 
value  of  the  strip  taken  for  the  easement  is  not  the  basis 
of  damages,  but  the  jury  must  consider  the  part  taken 
in  relation  to  the  remainder  of  the  farm,  and  the  restric- 
tions the  pipe  line  will  cause  in  making1  improvements 
on  the  land  and  liability  of  the  gas  to  escape  from  the 
pipes  and  injure  the  crops;1  but  the  appellate  court  of 
the  same  state  held  that  such  damages  did  not  include 
the  prospective  injuries  to  crops  from  the  escape  of  gas, 
or  damages  to  persons  and  animals  from  the  explosion  of 
gas,2  since  it  will  not  be  presumed  that  natural  gas  will 
escape  and  cause  injury  to  persons  and  property  on  the 
land  over  which  the  pipe  line  passes.8  So  damages  will 
not  be  allowed  for  probable  fires  caused  by  the  escape 
and  explosion  of  gas  from  pipe  lines4  independent  of 

1.  Manufacturers'  Nat.  Gas  Co.  vs.  Leslie  (Ind.  Sup.  Ct.),  49 

N.  E.,  946. 

2.  Manufacturers'  Nat.  Gas  Co.  vs.  Leslie,  22  Ind.  App.,  677;  51 

N.  E.,510. 

3.  Indiana  Nat.  Gas  &  Oil  Co.  vs.  Jones,  14  Ind.  App.,  55:  42  N. 

E.,487. 

4.  Indiana  Nat.  Gas  &  Oil  Co.  vs.  Jones,  14  Ind.  App.,  55;  42  N. 

E.,  487. 


132  Right  Acquired. 

the  damages  to  the  land  in  laying"  the  pipe  lines.  In 
Pennsylvania,  when  a  gas  company  enters  the  land  as  a 
trespasser,  and  digs  trenches  and  places  pipes* in  the 
trenches,  the  land  owner  will  be  awarded  damages  for 
any  injury  caused  by  the  operation  of  the  pipe  line  on 
the  land.1  And  in  the  same  state,  where  an  action  tor 
damages  is  brought  against  a  gas  company,  for  damages 
to  crops  occasioned  by  the  escape  of  gas,  such  action 
will  not  lie  when  there  is  no  evidence  that  the  pipes  were 
defective  or  the  same  were  not  properly  cared  for  or  con- 
structed. Where  an  appeal  is  taken  from  Indiana  the 
award  of  damages  the  burden  of  proof  is  on  the  land 
owner.2  In  Pennsylvania  when  the  land  is  taken  under 
the  right  of  eminent  domain  for  a  pipe  line,  for  the  trans- 
portation of  natural  gas,  the  measure  of  damages  is  to 
be  determined  by  the  difference  between  the  benefits  re- 
ceived from  the  construction  of  the  pipe  line  and  the 
damages  accruing  from  such  construction.3 

SEC.  4.  RIGHTS  ACQUIRED— SURFACE  SUPPORT — 
OTHER  ELEMENTS  OP  DAMAGES. — When  a  pipe  line  com- 
pany condemns  land  for  a  right  of  way  to  construct  a 
pipe  line  such  company  acquires  the  right  of  surface 
support  and  the  owner  of  the  land  has  no  right  to  take 
coal  from  the  ground  beneath  the  pipe  line;4  but  the  pipe 
line  company  may  release  the  right  to  the  surface  sup- 
port and  take  the  risk  of  subsidence  and  the  land  owner 
cannot  recover  compensation  therefor  though  the  pipe 
line  company,  by  such  release,  cannot  defeat  the  right 
of  the  owner  of  the  mineral  to  compensation  for  the 
risk  that  gas  may  find  its  way  from  the  pipes  to  the 
mine  below,  since  the  owner  may  recover  damages  in- 
flicted on  the  property  as  a  whole;5  and  in  such  a  case, 

1.  Patterson  vs.  People's  Nat.  Gas  Co.,  172  Pa.,  554;  33  Atl.,  575; 

Denniston  vs.  Philadelphia  Co.,  161  Pa.,  41;  28  A.,  1007. 

2.  Consumers'  Gas  Trust  Co.  vs.  Hunsinger,  12  Ind.  App.,  213; 

40  N.  E.,34. 

3.  Fisher  vs.  Baden  Gas  Co.,  138  Pa.,  301;  22  Atl.,  29. 

4.  Davis  vs.  Jefferson  Gas  Co.,  147  Pa.,  130;   23  Atl.,  218;  Mc- 

Gregor vs.  Equitable  Gas  Co.,  139  Pa.,  230;  21  Atl.,  13. 

5.  Davis  vs.  Jefferson  Gas  Co.,  147  Pa.,  130;  23  Atl.,  218. 


Abandonment  of  Pipe  Line.  133 

evidence  of  the  character  of  the  soil  and  the  probable 
danger  of  the  surface  subsiding  when  the  minerals  are 
removed,  and  the  breaking  of  the  pipe  on  account  of 
subsidence,  and  the  escape  of  gas  to  the  mine  is  admis- 
sible to  show  the  general  depreciation  in  the  value  of 
the  land  over  which  the  line  is  to  run,  but  evidence  which 
is  improbable  is  not  admissible,  such  as  evidence  that 
coal,  which  is  found  below  the  surface  at  a  depth  of  over 
100  feet,  will  be  required  to  support  a  pipe  line  on  the 
surface,  and  that  such  pipe  line  is  likely  to  break  if  re- 
moved is  purely  speculative  and  inadmissible. 1  Damages 
are  not  allowed  because  it  will  cost  more  to  mine  the 
coal  on  account  of  the  pipe  line  passing  over  it. 2  Damages 
must  be  proven  by  persons  who  are  familiar  with  the 
situation,  so  a  witness  who  is  not  shown  to  have  any 
knowledge  and  who  appears  to  have  no  experience  or 
means  of  information  cannot  testify  as  to  what  amount  of 
coal  in  place  will  be  required  to  support  a  pipe  line.8 

It  has  been  held  that  the  petitioner  for  a  right  of 
way  for  a  pipe  line  may  release  the  right  to  surface  sup- 
port on  the  trial  after  filing  bond  to  secure  damages  and 
when  such  release  is  made  the  owner  of  the  coal  can 
mine  the  same;  and  the  pipe  line  company  takes  the  risk 
of  subsidence  and  such  a  servitude  should  not  be  con- 
sidered as  an  element  of  damage  as  to  mining  coal. 4 

SEC.  5.  ABANDONMENT  OF  PIPE  LINE— RIGHT  TO 
REMOVE  SAME. — Where  a  pipe  line  company  acquired 
the  right  to  lay  pipes  under  the  Pennsylvania  Act,  May 
29,  1885,  and  the  owners'  land  was  condemned  and  dam- 
ages assessed  and  paid,  under  the  act  for  the  easement  to 
lay  such  pipes,  and  the  company  transported  gas  through 
the  pipes  from  1888  to  1893,  when  the  supply  of  gas  failed 
at  the  wells  and  the  company  concluded  to  remove  the 
pipes  with  the  intention  of  abandoning  the  easement  as 

1.  Jefferson  Gas  Co.  vs.  Davis,  147  Pa.,  130;  and  2  Infra. 

2.  Wallace  vs.  Jefferson  Gas  Co.,  147  Pa.,  206. 

3.  Wallace  vs.  Jefferson  Gas  Co.,  147  Pa.,  206. 

4.  McGregor  vs.  Equitable  Gas  Co.,  139  Pa.,  230;   21  Atl.,  13; 

Penn  Coal  Co.  vs.  Gas  Co.,  151  Pa.,  522. 


134  Release  of  Surface  Support. 

a  line  of  transportation,  the  material  in  the  pipe  line  be- 
longed to  the  company  and  it  had  a  right  to  remove  the 
same  after  the  gas  failed.  The  proceeding  under  the 
eminent  domain  act  had  no  effect  on  the  title  to  the  pipe, 
nor  did  the  proceedings  impose  any  obligation  on  the 
company  to  maintain  them  any  longer  than  the  company 
saw  fit  under  the  circumstances;  and  the  company  may 
surrender  its  easement  and  surrender  the  land  to  the 
owner,  but  the  company  had  a  right  to  enter  the  land  be- 
fore it  surrendered  its  easement  and  remove  the  pipes. 

The  removal  of  the  pipe  must  be  done  without  injury 
to  the  land  owner,  and,  where  the  law  requires  the  com- 
pany to  place  its  pipes  two  feet  below  the  surface,  the 
sod  covering  the  pipes  must  be  removed  with  care  and 
replaced,  and,  if  the  company  drives  teams  over  meadows 
in  wet  weather  to  remove  the  pipe  and  damages  accrue, 
the  land  owner  must  be  paid  whatever  damages  done  to 
his  meadow  and  also  any  other  damages  incident  to  the 
removal  of  the  pipes. * 

SEC.  6.  CONDEMNATION  AFTER  RELEASE  OF  SUR- 
FACE SUPPORT. — Where  an  owner  leased  his  lands  to 
a  mining  company  and,  in  the  lease,  surrendered  all  right 
to  surface  support  by  the  removal  of  the  coal  beneath 
the  surface,  and  thereafter  a  pipe  line  was  sought  to  be 
laid  on  the  surface  before  the  coal  was  removed  and  the 
land  was  condemned,  the  party  condemning  the  land 
for  the  pipe  line  was  not  bound  by  the  release  of  the  sur- 
face support  by  the  owner.  As  under  the  law,  an  en- 
try upon  the  surface  is  an  entry  upon  any  part  below 
the  surface,  so  where  a  coal  company  which  owns  the 
coal  was  not  made  a  party  to  the  acquisition  of  the  right 
of  way  by  a  pipe  line  company,  the  coal  company  can 
enjoin  the  pipe  line  company  from  making  an  entry  upon 
the  surface  for  the  pipe  line. 2 

1.  Clements  &  W.vs.  Philadelphia  Co.,  184  Pa.,  28;  39  L.R.A.  532. 

2.  Pennsylvania  Gas  &  Coal  Co.  vs.  Varsailles  Gas  Co.,  131  Pa., 

522;  19Atl.,933. 


Pipe  Line  on  Railroad  Eight  of  Way.  135 

/ 

SEC.  7.  PIPE  LINES  ACROSS  A  RAILROAD  RIGHT  OP 
WAY. — Where  a  railroad  company  acquired  the  right  of 
way  by  deed  over  the  lands  of  a  private  owner,  and  the 
right  of  way  is  an  interest  in  the  fee  in  the  land  so  oc- 
cupied and  acquired  for  the  right  of  way,  and  in  the  deed 
granting  the  right  of  way,  the  grantor  reserved  to  him- 
self, his  heirs  and  successors,  and  assigns,  a  right  to 
pass  across  the  railroad  under  the  following  stipulation 
in  the  deed:  "A  suitable  wagon  road,  or  crossing,  which 
shall  be  at  least  thirteen  feet  wide,  so  as  to  enable  the 
said  Stewart  to  travel  freely  between  his  lands  on  each 
side  of  said  granted  premises,"  and  the  owner  of  the 
easement  reserved  granted  an  oil  pipe  line  company  a 
right  to  place  its  pipes  on  the  easement  and  the  com- 
pany, in  pursuance  of  the  supposed  right,  dug  up  the 
road  and  placed  its  pipes  in  the  ground  and  was  using 
them  for  some  years,  when  the  railroad  company  brought 
an  action  in  trespass,  the  pipe  line  company  was  held 
liable  as  a  trespasser,  because  the  railroad  company  was 
the  owner  of  the  fee  and  that  the  way  reserved  by  the 
land  owner  was  but  an  easement  and  the  same  was  cre- 
ated for  the  use  of  the  lands  owned  by  him  on  each  side 
of  the  railroad,  and  that  the  way  cannot  be  used  for  any 
other  purpose  unconnected  with  the  use  of  the  land;  and 
cannot  be  assigned  to  a  stranger;  or  the  owner  cannot 
license  a  stranger  to  use  it  for  purposes  disconnected 
with  the  use  of  the  land.  *  A  land  owner  was  held  to  be  en- 
titled to  a  way  of  necessity  where  he  conveyed  a  right  of 
way  in  fee  to  a  railroad  company  through  his  land,  and 
years  afterwards  gas  was  discovered  on  the  opposite  side 
of  the  land  from  his  residence  to  which  place  he  wished 
to  convey  the  gas.a 

SEC.  8.  RIGHT  OF  WAY  THROUGH  COAL  TO  REACH 
OIL  OR  GAS. — The  owner  of  the  surf  ace  sold  the  coal  rights 
to  another  with  a  right  to  enter  upon  the  surface  to  sink 
shafts,  remove  coal,  and  a  right  to  travel  over  the  land 

1.  United  States  Pipe  Line  Co.vs.  Del.  Lac.  &  W.  Ry.,  62  N.J.L., 

254;  41  Atl.,  759;  42  L.R.A.,  572. 

2.  Uhl  vs.  Ohio  River  Ry.  Co.,  47  W.  Va.,  59. 


136  Eight  of  Way  Through  Mines. 

to  reach  the  places  to  sink  the  shafts  and  remove  the 
coal.  Some  time  thereafter  oil  and  gas  were  found  to 
exist  in  the  lands  beneath  the  stratum  of  coal,  and  the 
owner  of  the  surface,  who  was  also  the  owner  of  the 
stratum  of  oil  and  gas,  leased  the  same  for  the  produc- 
tion of  oil  and  gas.  The  lessee  proceeded  to  sink  wells 
to  reach  the  oil  and  gas  below  the  stratum  of  coal,  when 
the  coal  company  sued  out  an  injunction  to  prevent  the 
parties  operating  for  oil  and  gas,  from  sinking  wells 
through  the  vein  of  coal,  on  the  ground  that  the  owners 
of  the  stratum  of  oil  and  gas  had  no  right  to  drill  wells 
through  the  coal  to  reach  the  oil  and  gas,  and  on  the 
ground  that  gas  would  leak  and  the  leakage  would  make 
the  mine  unsafe  for  the  coal  company's  employees  and 
dangerous  to  its  property  and  would  depreciate  the  value 
of  the  property.  The  injunction  was  denied  because  the 
owner  of  the  surface  was  still  the  owner  of  the  whole 
fee  except  the  coal  and  that  the  owner  of  the  coal  rights 
had  no  estate  in  the  lands  except  the  coal  and  the  right 
to  remove  the  same  and  that,  when  the  coal  was  all  re- 
moved, his  estate  ceased  and  all  that  could  be  possibly 
claimed  by  the  owner  of  the  coal  would  be  that  the  rights 
of  the  owner  of  the  balance  of  the  fee  were  suspended 
during  the  time  the  owner  of  the  coal  was  removing  it; 
but  the  owner's  rights  were  suspended  only  to  the  extent 
of  preventing  any  wanton  interference  with  the  coal  min- 
ing, and,  for  every  necessary  interfering,  the  owner  of 
the  remainder  of  the  fee  must  respond  in  damages.  But 
that  the  owner  of  the  coal  rights  must  so  exercise  his 
rights  as  not  to  interfere  with  the  rights  of  the  others 
who  may  own  an  estate  either  above  or  below,  and  that 
the  right  of  the  surface  owner  or  the  owner  of  the  estate 
below  has  a  right  to  reach  the  estate  below  at  all  times. 
No  one  can  deny  the  title  of  the  owner  of  a  sub-strata 
but  if  a  denial  of  the  right  to  reach  the  sub-strata  was 
sustained,  such  owner  would  in  effect  be  deprived  of  his 
title  and  estate.1  So  where  an  application  was  made  for 

1.  Chartiers  Block  Coal  Co.  vs.  Mellon,  152  Pa.,  286;  18  L.B.A., 
702;  25  A.,  597. 


Pipes  Laid  on  Street.  137 

a  preliminary  injunction  to  prevent  an  oil  well  from  be- 
ing sunk  through  a  coal  mine  on  the  ground  that  the  gas 
will  escape,  and  find  its  way  to  the  mine,  and  cause  a 
loss  of  life  and  property,  and  the  allegation  is  supported 
by  affidavits,  but  denied  by  counter  affidavits,  and  also 
the  latter  affidavits  show  that  extra  precautions  are  used_ 
to  prevent  the  escape  of  gas  in  the  contract  for  drilling, 
and  the  injunction  would  inconvenience  the  operators  of 
the  well,  the  injunction  will  be  denied.1  An  injunction 
will  be  denied  where  coal  is  no  longer  mined  at  the  point 
where  the  well  is  being  drilled  and  does  not  interfere 
with  mining  operations  at  other  points  and  the  owner  of 
the  coal  can  be  awarded  the  value  of  the  coal  taken  out 
in  the  drilling  of  the  well  at  the  final  hearing. 2  So  where 
mine  inspectors  make  an  application  for  an  injunction 
to  suspend  operations  in  a  coal  mine  because  wells  have 
been  sunk  through  the  mine  and  others  will  be  sunk,  it 
will  not  be  granted  when  no  present  danger  appears,  but 
the  application  will  be  suspended  for  a  future  time  in 
case  danger  should  arise.8 

SEC.  9.  PIPES  LAID  ON  A  STREET  WHICH  WAS  LAID 
OUT  UNDER  A  STATUTE  WHICH  WAS  DECLARED  VOID  IN 
A  SUBSEQUENT  PROCEEDING. — Where  a  gas  company  gets 
the  permission  of  the  proper  municipal  authorities  to  lay 
pipes  on  one  of  the  streets  of  a  city  and  the  right  granted 
was  accepted  by  the  company,  and  the  pipes  were  laid 
on  the  street,  but  the  law  under  which  the  street  was 
laid  out  was.  subsequently  declared  unconstitutional,  the 
owner  of  the  lands  cannot  deprive  the  gas  company  of 
the  right  to  continue  the  use  of  the  pipes  on  the  street 
after  the  law  was  declared  void,  when  no  question  as  to 
the  validity  of  the  law  was  raised  at  the  time  the  lands 
were  taken  for  the  purpose  of  a  street.4  The  street  so 
laid  out  will  be  regarded  as  done  in  a  legal  manner  and 

1.  Rend  vs.  Venture  Oil  Co.,  (C.C.W.D.  Pa.)  48  Fed.,  R.  248. 

2.  Rend  vs.  Venture  Oil  Co.,  Supra. 

3.  Com.  Blick  vs.  Sauters,   (Pa.  C.  P.)   Pa.  Leg.  Inst.,   462;  6 

Kulp.,  407. 

4.  King  vs.  Philadelphia  Co.,  154  Pa.,  160;  21  L.R.A.,  141. 


138     Removal  of  Pipe  Line  from  the  Public  Highway. 

the  same  rule  applies  in  such  a  case  as  applies  to  the 
acts  of  de  facto  officers.1 

SEC.  10.  LIABILITY  OF  A  LAND  OWNER  FOR  THE 
REMOVAL  OF  A  PIPE  LINE  LAID  ALONG  A  PUBLIC  HIGH 
WAY— WHEN  THE  OWNER  is  BARRED  FROM  REMOVING 
PIPES. — An  abutting  land  owner  and  those  who  assisted 
were  held  not  liable  for  damages  for  the  removal  of  a 
pipe  line  laid  along  a  public  highway  without  the  con- 
sent of  the  county  commissioners  and  without  the  con- 
sent of  the  owner  of  the  fee  in  the  public  highway  or  the 
payment  of  damages  to  the  owner  under  a  law  which 
gave  the  pipe  line  company  a  right:  "To  dig  its  trenches; 
to  lay  its  pipe  lines  over,  across,  or  under  any  stream  of 
water,  water  course,  road,  highway  or  railroad,  so  as 
not  to  interfere  with  the  free  use  of  the  same  which  the 
route  thereof  shall  intersect,  in  such  a  manner  as  to 
afford  security  for  life  or  property.  And  whenever  the 
board  of  commissioners  of  the  proper  county  shall  so 
direct,  said  trenches  and  pipe  lines  may  be  constructed 
and  laid  along  the  right  of  way  of  any  road  or  highway; 
but  in  all  cases  where  said  trenches  are,  or  pipe  lines  shall 
be  laid  across,  upon,  or  along  any  gravel  road,  road  or 
highway  thus  intersected,  said  company,  corporation,  or 
voluntary  association  shall  immediately  upon  the  laying 
of  any  such  pipe  restore  the  same  to  its  former  state, 
etc."  The  rule  was  stated  to  be  well  settled  in  Indiana 
that  the  owner  of  land  abutting  on  a  public  highway  is 
the  owner  of  the  fee  to  the  middle  of  the  highway  and 
that  the  rights  of  the  public  is  simply  an  easement  afford- 
ing passage  over  and  along  the  highway.2  It  is  also 
well  settled  in  Indiana  that  such  abutting  owners  have  a 
special  proprietary  right  in  the  highway,  separate  and 
distinct  from  that  of  the  general  public,  and  these  rights 
cannot  be  taken  away  or  impaired  without  compensa- 
tion. Such  a  right  cannot  be  divested  by  the  legislature 
except  when  the  land  is  taken  it  is  devoted  to  a  public 
use  and  then  only  when  compensation  is  made  for  the 

1.  King.  vs.  Philadelphia  Co.,  21  L.R.A.,  141  &  Note. 

2.  Consumers  Gas  Trust  Co.  vs.  Huntsenger.    (Ind.   App.)   39 

N.E.,423. 


Estoppel  of  Owner.  139 

land  to  be  taken.  *  The  building-  of  natural  gas  lines  and 
thus  supplying  fuel  to  the  public,  is  a  matter  of  a  general 
public  interest  and  for  the  public  good,  and  in  such  a  case 
the  individual  right  must  give  way  to  the  public  rights, 
but  compensation  must  be  made  before  an  individual's 
land  is  taken,  even  though  the  taking  will  benefit  the^ 
public,  and  as  the  use  of  a  public  highway  for  the  trans- 
portation of  gas  through  pipes  does  not  come  within  the 
use  for  which  a  highway  was  intended  so  the  laying1  of 
such  pipes  is  an  additional  burden  for  which  compensa- 
tion must  be  paid  to  the  abutting  owner.2  Hence  the 
pipe  line  company  committed  an  unlawful  trespass  when 
it  laid  its  pipes  along  the  public  highway  without  the 
consent  of  the  abutting  owner,  and  such  owner  may  expel 
the  agents  of  the  company  and  remove  the  pipes  from 
the  highway,  doing  as  little  damages  as  possible  to  the 
pipes,  and  the  owner  could  call  assistance  and  those  who 
would  help  in  removing  the  pipes  would  not  be  liable.8 
The  owner  in  such  a  case  must  not  wait,  however,  until 
the  pipes  are  used  to  supply  gas  to  the  public,  but  must 
remove  them  before  the  pipes  are  used  for  that  purpose, 
because  the  rights  of  the  public  intervene  when  the 
public  is  supplied  through  the  pipes  and  then  the  land 
owner's  rights  are  limited  to  compensation  for  the  land 
taken.4 

1.  Consumers    Gas  Trust  Co.  vs.  Huntsenger,    (Ind.  App.)    39 

N.E.  423. 

2.  Consumers  Gas  Trust  Co.  vs.   Huntsenger,   (Ind.  App.)   39 

N.E.  423;  Hoffman  vs.  State,  21  Ind.  App.,449;52  N.E.  713. 

3.  Consumers  Gas  Trust  Co.vs  Huntsenger,  (Ind.  App.)  39  N.E., 

423;  Hoffman  vs.  State,  supra. 

4.  Kincaid  vs.  Ind.  Nat.  Gas  Co.,  124  Ind.,  577;  24  N.E.  1066. 


Execution   of  Oil   and   Gas   Leases. 


CHAPTER  XII. 

SECTION  1.  SALE  OR  LEASE  OF  HOMESTEAD  MUST 
BE  JOINT  ACT  OF  HUSBAND  AND  WIFE— HOMESTEAD  ON 
LEASED  LANDS  AND  MINERAL  CLAIMS— ABANDONMENT 
OF  HOMESTEAD. — Where  a  disposition  is  made  of  the 
homestead,  by  absolute  sale,  or  by  a  lease,  to  prospect 
for  the  oil  or  gas,  which  may  be  found  on  the  premises, 
the  deed  or  lease  must  be  signed  by  both  husband  and 
wife  in  those  states  where  the  statute  provides  that  any 
disposition  of  the  homestead  must  be  the  joint  act  of  the 
husband  and  wife.  So  where  a  lease  was  executed  by  the 
husband  alone,  and  the  lease  stipulated  that  the  lessee 
and  his  assigns  had  the  righ  t  to  prospect  for  oil  and  gas  on 
the  lands  demised;  and  to  carry  the  lease  into  execution 
the  lessee  would  have  to  erect  derricks  on  the  premises 
to  sink  an  oil  or  gas  well,  and  would  also  have  to  appro- 
priate a  right  of  way  over  the  premises  and  also  have 
buildings  thereon  necessary  to  carry  on  the  business,  of 
drilling  for  oil  or  gas,  the  lease  contemplates  the  occupa- 
tion of  part  of  the  premises  at  least,  and  is  void  if  the 
premises  is  a  homestead,  where  only  the  husband  signed 
the  lease,  and  where  the  statute  requires  that  any  dispo- 
sition of  the  homestead  must  be  the  joint  act  of  the  hus- 
band and  wife. *  So  where  the  law  requires  the  consent 
to  be  the  joint  act  of  the  husband  and  wife,  separate 
leases  or  instruments  of  conveyances  are  not  sufficient  to 

1.  Palmer  Oil  &  Gas  Co.  vs.  Parrish,  61  Kas.,  311;  59  Pac.,  640; 
The  Wea  Gas,  Coal  &  Oil  Co.  vs.  The  Franklin  Land  Co.,  43 
Kan.,  518;  Evans  vs.  Grand  Rapids  L.  &  D.  Ry.,  68  Mich., 
602;  36  N.  W.,  687;  Pilcher  vs.  A.  F.  &  Santa  Fe  Ry.,  38 
Kan.,  517;  16  Pac.,  946. 


Sale  of  Oil  and  Gas.  141 

pass  any  claim  or  interest  to  the  grantee. 1  So  a  power  of 
attorney  authorizing"  the  husband  to  sell  or  dispose  of 
the  homestead  is  not  sufficient  as  the  joint  consent  of  the 
husband  and  the  wife.2  So  where  a  homestead  right  ex- 
ists, in  leased  lands,  and  a  homestead  may  exist  on  leased 
lands  as  well  as  the  fee,  the  instrument  must  be  acknow- 
ledged by  both  husband  and  wife  where  the  statute  re- 
quires.8-  So  where  a  claimant  enters  land  for  mineral 
purposes  but  also  resides  thereon  with  his  family  and  uses 
the  land  to  pasture  his  cattle,  the  owner  of  the  mineral 
claim  has  a  homestead  in  the  lands  under  the  state  laws, 
although  the  entry  was  made  under  the  United  States  laws 
as  a  mineral  claim.4  When  an  oil  and  gas  lease  is  made 
on  premises  by  the  husband  alone  and  which  is  void  be- 
cause the  statute  requires  such  a  lease  to  be  the  joint 
act  of  the  husband  and  wife,  the  homestead  is  not  aban- 
doned so  as  to  make  the  lease  effective,  at  the  time  of  its 
execution,  by  the  husband  and  wife  leaving  the  prem- 
ises, to  find  another  desirable  home;  and,  if  none  could 
be  found,  to  return  to  the  homestead  again,  and  the  hus- 
band and  wife  returned  to  the  homestead  and,  while  they 
were  absent,  the  homestead  was  occupied  by  members  of 
the  family  and  the  stock  and  personal  property  used  on 
the  homestead  were  left  on  the  premises.5 

SEC.  2.  A  SALE  OR  LEASE  OF  LAND  FOR  THE  PRO- 
DUCTION OF  OIL  OR  GAS  is  A  DISPOSITION  OF  THE  LAND 
ITSELF — INFANTS  CANNOT  MAKE  A  VALID  DEED  OR 
LEASE — GUARDIAN  MUST,  WHEN  DISPOSING  OF  INFANT'S 
LANDS,  COMPLY  WITH  THE  LAW  IN  REFERENCE  TO  THE 
DISPOSITION  OF  REAL  ESTATE. — Oil  and  gas  are  miner- 
als and,  as  minerals,  are  part  of  the  land,  and  any  dis- 
position made  of  the  oil  or  gas  is  a  disposition  of  the 

1.  Ott  vs.  Sprague,  27  Kan.,  624;  Wallace  vs.  Travelers  Ins.  Co., 

54  Kan.,  442;  38  Pac.,  489;  25  L.  R.  A.,  806. 

2.  Wallace  vs.  Travelers  Ins.  Co.,  54  Kan.,  442;  38  Pac.,  489. 

3.  Gage  vs.  Wheeler,  129  111.,  197. 

4.  Gaylord  vs.  Place,  —  Cal.,  — ;  33  Pa.,  484. 

5.  Palmer  Oil  &  Gas  Co.  vs.  Parrish,  61  Kan.,  311;  59  Pac.,  640. 


142  Sale  of  Oil  and  Gas  in  Land. 

land;1  and  any  sale  or  disposition  of  the  oil  or  gas  is  a 
sale  or  disposition  of  an  interest  in  the  land.8  Hence, 
when  an  attempted  disposition  is  made  of  the  oil  and 
gas  rights  by  infants,  it  must  come  within  the  common 
law  rule  that  a  deed  of  an  infant  is  voidable.3  So  when 
a  guardian  leased  an  infant's  lands  for  the  purpose  of 
developing  the  lands  for  oil  and  gas,  and  the  law  of 
the  state  provided  that  no  sale  or  disposition  could  be 
made  of  the  infant's  lands  by  the  guardian  without  the 
approval  of  the  orphan's  court  and  the  court  did  not 
approve  of  the  lease,  the  lease  of  the  lands  for  the  de- 
velopment of  oil  was  held  to  be  a  disposition  of  the  in- 
fant's lands  and  void. 4  So  also  upon  an  application  for 
the  sale  and  disposition  of  the  oil  and  gas  right  in  an  in- 
fant's land,  which  was  held  in  remainder  by  the  infant, 
and  the  decree  provided  that  the  infant  was  to  receive  a 
certain  portion  of  the  money  realized  and  the  life  tenant 
another  portion  of  the  proceeds,  the  court  held  that  a 
disposition  of  the  oil  was  a  disposition  of  the  corpus  of 
the  estate;  and  that  the  life  tenant  was  entitled  to  no 
portion  of  the  corpus  of  the  estate,  as  that  was  the  prop- 
erty of  the  infant;  and  the  life  tenant  was  entitled  only 
to  the  income  from  the  proceeds  of  the  sale  of  the  oil 
and  the  infant  remainderman  was  entitled  to  the  whole 
fund  as  taking  the  place  of  the  land  at  the  death  of  the 
life  tenant.5  So  where  a  will  gives  a  life  estate  to  one 
person  and  the  remainder  in  fee  of  seven-tenths  of  the 
property  to  infants,  with  power  of  appointment,  under 
a  will,  by  a  life  tenant,  the  interest  of  the  infants  is  a 
vested  interest  and  the  infants  cannot  be  made  parties 
to  a  suit  by  representation  and  any  judicial  sale  made  of 
the  lands  is  void  where  the  infants  were  not  parties  to 

1.  Wilson  vs.  Hughes,  43  Va..  826;  28  S.  E.,  781;  39  L.  R.  A.,  292; 

Funk  vs.  Hadleman,  53  Pa.,  229. 

2.  Wilson  vs.  Hughes,  43  Va.,  826;  28  S.  E.,  781. 

3.  Cole  vs.  Pennoyer,  14  111.,  158;    Engleberth  vs.  Pritchett,  40 

Neb.,  195;  Brown  vs.  Farmers  &  Mechanics'  Nat.  Bank,  88 
Tex.,  265. 

4.  Stoughton's  Appeal,  88  Pa.,  198. 

5.  Wilson  vs.  Hughes,  43  W.  Va.,  826;  28  S.  E.,  781;  Blakely  vs. 

Marshall,  174  Pa.,  425;  34  Atl.,  564. 


Infants  Not  Estopped.  143 

the  suit  and  the  life  tenant  and  owner  of  the  other  three- 
tenths  has  no  right  to  drill  for  oil  on  the  premises. l 

SEC.  3.  INFANTS  NOT  ESTOPPED  BECAUSE  NO  ACT 
WAS  DONE  TO  PREVENT  THE  PURCHASERS  UNDER  A  DE- 
CREE FROM  MAKING  IMPROVEMENTS;  OR  FROM  PAYING 
OFF  OTHER  CLAIMENTS,  OR  BY  THE  STATUTE  OF  LIMITA- 
TIONS UNTIL  FULL  PERIOD  HAS  RUN;  OR  WHERE  THE 
FATHER  TRADED  THE  INFANT'S  LAND  AND  TOOK  OTHER 
LANDS  IN  PLACE  OF  THE  INFANT'S. — Where  lands  have 
been  sold  under  a  decree  of  the  court,  and  infants  who 
were  not  made  parties  to  the  suit,  had  a  vested  estate, 
in  remainder  in  the  lands,  and  possession  of  the  lands 
was  delivered  to  the  purchaser  by  the  life  tenant,  the 
infant  remainderman  will  not  be  estopped  from  enjoin- 
ing the  purchaser  or  his  grantee  from  taking  oil  from  the 
land,  simply  because  they  did  no  act  to  prevent  or  hin- 
der the  purchaser  from  expending  large  sums  of  money 
in  sinking  numerous  oil  wells  on  the  premises, 2  for  when 
the  legal  title  is  vested  in  one  person,  it  takes  a  clear 
case  of  estoppel  to  have  the  effect  of  divesting  the  title 
from  one  person  and  placing  in  another;3  and  the  fact 
that  owners  did  not  make  themselves  parties  to  a  suit, 
when  they  knew  that  their  lands  were  to  be  sold  for  their 
ancestor's  debts,  is  not  sufficient,  and  to  be  parties  was 
necessary  to  divest  their  title.4  And  the  fact  that  the 
tenants  knew  that  other  claimants  to  the  lands  were 
bought  off  is  not  sufficient  to  estop  the  real  owners. 5  So 
where  laches  is  set  up  as  a  defense  against  the  infant 
tenants  in  remainder,  under  a  judicial  sale  of  their  lands, 
in  a  suit,  to  which  they  were  not  made  parties,  the  stat- 
ute does  not  begin  to  run  until  the  death  of  the  life  ten- 
ant, and  then  the  infants  have  the  full  period  to  recover 

1.  Williamson  vs.  Jones,  39  W.  Va.,  231;  19  S.  E.,  436;  25  L.  E. 

A.,  222;  Williamson  vs.  Jones,  43  W.  Va.,  562;  27  S.  E.,  411; 
38  L.  R.  A.,  694. 

2.  Williamson  vs.  Jones,  39  W.  Va.,  231;  19  S.  E.,  436. 

3.  Williamson  vs.  Jones,  43  W.  Va.,  562;  27  S.  E,,  411. 

4.  Williamson  vs.  Jones,  43  W.  Va.,  562;  27  S.  E.,  411. 

5.  Williamson  vs.  Jones,  43  W.  Va.,  562;  27  S.  E.,  411. 


144  Lease  of  Lunatic's  Lands. 

the  lands. l  So,  where  the  mineral  rights  of  infants  were 
sold  by  the  father  of  the  infants,  and  the  minerals  are 
taken  from  the  lands  by  the  purchaser,  and  other  lands 
are  given  to  the  infant  tenants,  in  place  of  the  lands  sold 
by  the  father,  the  infants'  title  still  remains  vested  in 
them  and  the  infants  may  recover  the  value  of  the  min- 
erals in  place  the  time  they  were  mined.  * 

SEC.  4.  SALE  OR  LEASE  BY  A  PERSON  NOT  AD- 
JUDGED INSANE  is  VOIDABLE  ONLY;  PURCHASER  HAS  A 
*LIRN  ON  THE  LAND  FOR  THE  MONEY  PAID — WHEN  AD- 
JUDGED INSANE  SALE  OR  LEASE  VOID. — A  deed  or  con- 
veyance by  a  person  of  unsound  mind,  not  under  guard- 
ianship, conveys  the  seizen;8  and  when  an  unadjudged 
lunatic  sells  his  lands  for  a  valuable  consideration,  and 
the  purchaser  has  no  notice  of  his  lunacy,  the  title  passes 
to  purchaser  since  the  deed  of  a  person  who  is  not  ad- 
judged a  lunatic  is  voidable  only  and  not  void.4  So  when 
a  suit  is  brought  by  the  person  who  is  insane  to  set  aside 
the  conveyance,  the  courts  will  declare  the  consideration 
paid  to  the  lunatic  a  lien  on  the  land;5  but  when  a  per- 
son is  adjudged  insane  and  a  conservator  is  appointed 
by  the  court  to  take  charge  of  the  lunatic's  lands,  and 
the  law  provides  that  no  disposition  shall  be  made  of  the 
lunatic's  lands  without  an  order  of  the  court,  an  oil  or 
gas  lease  made  by  the  conservator  without  an  order  of 
the  court  is  void,6  and  where  the  statute  provides  that 
notice  must  be  given  to  the  incompetent  person  before 

1.  Williamson  vs.  Jones,  43  W.  Va.,  562;  27  S.  E.,  411. 

2.  Keys  vs.  Pittsburg  &  Wheeling  Coal  Co.,  58  Ohio,  246;  41  L. 

R.  A.,  681;  50  N.  E.,  911. 

3.  Grouse  vs.  Holdman,  19  Ind.,  30;  Wait  vs.  Maxwell,  5  Pick., 

217. 

4.  Odom  vs.  Riddick,  104  N.  C.,  515;  Riggan  vs.  Green,  80  N.  C., 

515. 

5.  McFalls  vs.  Brown,  37  N.  W.  Rep.,  784;  Burnham  vs.  Kidwell, 

113  111.,  425;  Scanlan  vs.  Cobb,  85  111.,  296. 

6.  South  Penn.  Oil  Co.  vs.  Mclntyre,  44  W.  Va..  296.  28  S.  E.,  922; 

Bates  vs.  Dunham,  58  la.,  308;  Stoughton's  App.,  88  Pa., 
198. 


Deed  or  Lease  by  a  Married  Woman.  145 

the  appointment  of  a  conservator  the  want  of  such  notice 
will  make  the  appointment  void. l 

SEC.  5.  DEED  OF  A  MARRIED  WOMAN  VOID  AT  COM- 
MON LAW — COMMON  LAW  RULE  ABROGATED  BY  STATUTE 
IN  MOST  STATES — DEED  MUST  BE  THE  JOINT  ACT  OF  HUS- 
BAND AND  WIFE  WHEN  STATUTE  REQUIRES  —  A  VOID 
DEED  WILL,  NOT  CREATE  AN  ESTOPPEL  AND  CANNOT  BE 
RATIFIED. — A  deed  by  a  married  woman  is  absolutely 
void  in  many  of  the  states,  unless  the  deed  is  made  as 
the  statute  directs.  The  statutes  of  many  of  the  states 
permit  a  married  woman  to  convey  her  lands,  on  the 
husband's  joining"  in  the  deed  and  the  wife  being  exam- 
ined separate  and  apart  from  her  husband,  by  the  person 
who  takes  the  acknowledgment  of  the  deed  and  the  cer- 
tificate of  acknowledgment  setting  forth  that  the  wife 
was  so  examined  separate  and  apart.2  The  deed  must 
be  the  joint  act  of  the  husband  and  wife  and  the  deed 
must  be  so  executed.3  So  where  a  deed  is  made  and  does 
not  comply  with  the  statute  of  the  state  in  which  the 
land  is  situated,  the  deed  is  not  merely  voidable  but  is 
absolutely  void,  and  such  a  deed  is  of  no  more  effect  in  a 
court  of  equity  than  in  a  court  of  law;4  and  a  deed  so 
executed  will  not  be  effective  to  create  an  estoppel  in  pals 
where  the  married  woman  acknowledged  that  the  deed 
was  valid,  as  the  deed  must  speak  for  itself;5  and  such 
a  deed  can  only  be  ratified  by  the  execution  of  a  valid 
deed.6 

SEC.  6.  SALE  OR  LEASE  OF  OIL  LANDS  BY  MARRIED 
WOMAN. — Where  the  statute  provides  that  "all  legal  dis- 


1.  South  Penn.  Oil  Co.  vs.  Mclntyre,  44  W.  Va.,  296;  28  S.  E.,  922; 

Chase  vs.  Hathaway,  14  Mass.,  222. 

2.  Metteler  vs.  Miller,  129  111.,  630;  Central  Land  Co.  vs.  Laidley, 

32  W.  Va.,134. 

3.  Stall  vs.  Harris,  51  Ark.,  294. 

4.  Glidden  vs.  Strapler,  52  Pa.,  402;   Laidley  vs.  Central  Land 

Co.,  30  Va.,  505;  Central  Land  Co.vs.  Laidley,  32  W.  Va.,134. 

5.  Leftwich  vs.  Neal,  7  W.  Va.,  569;  Elliot  vs.  Piersol,  26  U.  S., 

328;  Barnert  vs.  Shackleford,  6  J.  J.  Marsh,  532. 

6.  Glidden  vs.  Strupler,  52  Pa.,  402. 


146  When  Lease  is  Valid. 

abilities  of  a  married  woman  to  make  contracts  are  here- 
by abolished  except  as  herein  otherwise  provided,"  and 
the  same  statute  provided,  "That  she  shall  not  enter  into 
any  executory  contract  to  sell,  convey  or  mortgage  her 
real  estate;  nor  shall  she  convey  or  mortgage  the  same, 
unless  her  husband  join  in  such  contract,  conveyance  or 
mortgage,"  the  wife  has  no  power  without  her  husband 
joining  in  the  execution  of  the  lease,  to  give  a  lessee  a 
right  by  lease  to  drill  and  remove  the  oil  from  the  land 
and  a  right  to  lay  pipes  for  the  transportation  of  the  oil 
on  the  land,  without  the  husband  joining  in  the  execu- 
tion of  the  lease,  as  the  lease  was,  in  effect,  a  disposi- 
tion of  the  land.1  The  court  there  said:  "That  natural 
gas  and  oil,  after  they  are  brought  to  the  surface  from 
their  natural  reservoirs  under  the  soil  are  personal  prop- 
erty, *  *  but  whether  they  are  to  be  considered  part 
of  the  real  estate  while  in  the  earth  is  the  question,  *  * 
for  if  they  are  a  part  thereof  appellee  could  not,  without 
her  husband  joining,  make  a  valid  contract  which  would 
take  away  or  diminish  the  value  of  the  real  estate  itself. 
That  growing  timber,  stone  before  quarried  and  coal, 
lead  and  iron  before  mined  are  part  of  the  realty  itself, 
is  so  well  settled  that  we  deem  it  unnecessary  at  this 
time  to  cite  authorities.  Oil  and  gas  are  natural  pro- 
ducts and  their  source  is  in  the  soil  or  rocks  of  the  earth. 
True,  they  are  like  water  liquid  in  their  nature,  and 
they  are  also  like  water,  mineral.  It  is  said  that  water, 
oil  and  gas  should  be  classed  by  themselves,  and  are 
termed  minerals  ferae  naturae"  But  it  has  been  held  by 
the  Supreme  Court  of  the  same  state  that  where  a  lease 
was  made  by  a  married  woman,  her  husband  not  join- 
ing, for  the  production  of  oil  and  gas,  and  it  contained 
a  provision  that  if  no  well  was  completed  within  six 
months  the  lessee  was  to  pay  the  lessor  the  sum  of 
$80  per  annum,  and  no  well  was  completed  within  the 
time  specified  in  the  lease  and  the  money  was  paid  by  the 
lessee  to  the  lessor,  who  in  the  meantime  had  become  a 

1.  Columbus  Oil  Co.  vs.  Blake,  13  Ind.  App.,  680;  42  N.  E.,  234. 
See  also  Gas  Co.  vs.  DeWitt,  130  Pa.,  235;  18  Atl.,  724. 


Deed  Defectively  Executed.  147 

widow,  and  at  the  time  she  received  the  money  she  agreed 
to  extend  the  lease  for  one  year,  but  before  the  expira- 
tion of  the  year  she  made  a  second  lease  to  a  third  per- 
son and  a  controversy  arose  between  the  first  and  second 
lessee  as  to  their  right  to  the  premises  to  prospect  for  oil 
or  gas,  no  oil  or  gas  was  yet  found  by  either  party,  the 
first  lessee  was  entitled  to  the  possession  of  the  premises 
to  prospect  for  oil  and  gas.  The  lease  was  held  not  void 
but  voidable  and  that  the  promise  of  the  lessor  to  extend 
the  lease  was  binding  as  between  the  first  and  second 
lessee  when  such  a  promise  was  made  after  the  death  of 
her  husband.  The  court,  however,  drew  a  distinction  be- 
tween oil  and  gas  leases  and  leases  for  ordinary  purposes, 
because  the  interest  conveyed  by  oil  and  gas  leases  may 
be  lasting  and  enduring  but  where  no  oil  or  gas  is  yet 
found  the  right  conveyed  by  the  lease  is  still  inchoate 
and  has  no  effect  as  to  the  disposition  of  the  fee  until 
the  oil  or  gas  is  discovered.  The  right  of  the  lessor  to 
the  freehold  is  not  involved  where  the  action  is  between 
a  lessee  and  a  subsequent  lessee  who  are  engaged  in  pros- 
pecting for  oil  and  gas  and  no  oil  or  gas  was  yet  found, 
since  the  only  question  involved  is,  which  lessee  has  the 
exclusive  right  to  drill.  * 

SEC.  7.  LEASES  DEFECTIVELY  EXECUTED. — Where 
a  lease  was  made  by  the  lessor  and  his  wife  for  the  pur- 
pose of  drilling  and  operating  for  oil  and  gas  and  the 
lease  was  witnessed  only  by  one  witness  and  the  laws  of 
that  state  require  all  leases  of  that  character  to  be  ex- 
ecuted by  two  witnesses,  and  the  lessors  made  a  second 
lease  of  the  same  land,  the  first  lease  was  held  to  be  suf- 
ficient to  give  the  lessee  the  privilege  to  enter  the  land 
to  drill  and  operate  for  oil  and  gas,  and  was  good  in 
equity  against  the  second  lessee  who  had  actual  notice 
of  the  first  lease.2  The  Supreme  Court  of  the  same  state 
in  a  later  case  did  not  agree  with  the  rulings  of  the  Fed- 
eral Court  and  held  that  a  lease  of  lands  for  the  purpose 

1.  Heal  vs.  Niagara  Oil  Co.,  150  Ind.,  483;  50  N.  E.,  482. 

2.  Allegheny  Oil  Co.  vs.  Snyder,  106  Fed.  R.,  764. 


148  Deed  Not  Witnessed. 

of  developing  the  lands  for  the  production  of  oil  and  gas 
required  the  signatures  of  two  subscribing  witnesses  as 
to  the  signature  of  the  lessor,  where  the  lease  was  for 
a  longer  period  than  three  years,  as  the  execution  of 
a  lease  for  any  other  purpose,  and  that  a  lease  is  void 
where  only  one  witness  subscribes  to  the  execution  of 
the  lease.  The  recording  of  such  a  lease  will  impart  to 
it  no  validity,  and  where  possession  is  not  taken  the 
lessee  has  no  interest  in  the  land;  nor  will  such  a  lease 
be  reformed  in  equity  so  as  to  give  it  validity  where  third 
persons  have  acquired  the  land  although  such  persons 
have  actual  notice  of  the  lease. *  The  court  repudiated  the 
doctrine  laid  down  in  the  case  of  Allegheny  Oil  Co.  v.  Snyder, 
106  Fed.  R.,  764,  that  where  a  lease  was  defectively  exe- 
cuted the  lease  thus  executed  was  a  good  contract  for  a 
lease,  and  that  a  subsequent  lessee  took  a  second  lease 
subject  to  the  first  lease. 

1.  Longmeade  vs.  Weaver,  —  Ohio,  — ;  60  N.  E.,  992. 


OIL  AND   GAS   LEASES. 


CHAPTER  XIII. 

SECTION  1.  OIL  AND  GAS  LEASES  CONSTRUED  MORE 
STRICTLY  AGAINST  LESSEES — CANNOT  BE  HELD  FOR 
SPECULATIVE  PURPOSES  ON  THE  PAYMENT  OF  NOMINAL 
RENT — WHEN  TITLE  VESTS.  —  Courts  in  giving- construc- 
tion to  leases  of  land  for  the  production  of  oil  and  gas 
construe  the  lease  strictly  against  the  lessee  and  liber- 
ally in  favor  of  the  lessor. 1  So  where  a  lease  is  given 
and  the  lease  requires  the  lessee  prosecute  operations 
for  the  production  of  oil  and  gas,  no  title  passes  to  the 
lessee  until  oil  and  gas  is  discovered,  and,  if  no  oil  or 
gas  is  found,  no  estate  vests  in  the  lessee ;*  and  when  the 
lease  provides  that  certain  wells  shall  be  drilled  as  test 
wells,  the  lease  is  at  an  end,  if  oil  or  gas  is  not  found  in 
such  test  wells,  unless  the  lease  provides  that  other  tests 
may  be  made,  if  the  ones  specified  fail.8  The  leasing  of 
the  land  for  the  production  of  oil  and  gas  is  different 
from  the  leasing  of  land  for  the  production  of  the  solid 
minerals.  In  the  case  of  solid  minerals  they  are  confined 
within  a  particular  tract  and  no  adjoining  owner  can 
acquire  such  minerals  by  operations  on  his  own  land, 
because  they  are  solid  and  remain  in  place;  but,  with  oil 
and  gas,  any  operations  for  oil  and  gas,  on  lands  adjoin- 
ing, or  any  operations  in  the  same  territory,  will  affect 
the  supply  on  the  lands  where  no  operations  are  carried 
on,  because  the  oil  and  gas  will  flow  from  one  tract  to 
another  and  go  to  the  place  where  the  oil  or  gas  has  been 

1.  Steelsmith  vs.  Gartlin,  45  W.Va.,  27;  29  S.  E.,  978;  44  L.E.A., 

107;  Huggins  vs.  Daley,  99  Fed.  Rep.,  606;  48  L.  B.  A., 
320. 

2.  Venture  Oil  Co.  vs.  Fretts,  152  Pa.,  451;  25  Atl.,  732;  Steel- 

smith  vs.  Gartlin,  45  W.  Va.,  27;  29  S.  E.,  978. 

3.  Steelsmith  vs.  Gartlin,  45  W.  Va.,  27;  29  S.  E.,  978. 


150  Test  Wells. 

removed,  so  the  lessee  must  be  prompt  in  acting  and 
perform  all  the  express  as  well  as  the  implied  conditions 
of  his  lease. x  And  also,  as  the  values  of  lands  which  are 
held  for  the  production  of  oil  and  gas  are  fluctuating1  and 
speculative,  so  the  lessee  will  not  be  permitted  to  hold 
the  land  indefinitely  for  a  mere  nominal  rent,  when  a 
royalty  to  be  paid  out  of  the  oil  produced  is  the  chief 
consideration  for  the  lease.2  So  where  a  lease  is  made 
of  land  for  the  production  of  oil  and  no  oil  is  found  in 
the  land  within  the  time  specified  in  the  lease,  but  a  gas 
well  is  found  by  the  lessee,  in  his  prosecution  of  his 
search  for  oil,  the  lessee  has  no  claim  to  the  gas  well 
since  the  gas  does  not  come  within  the  terms  of  the 
lease.3 

SEC.  2.  TEST  WELLS — No  TITLE  VESTS  UNTIL  OIL 
OR  GAS  is  DISCOVERED  WHERE  TEST  WELLS  MUST  BE 
PUT  DOWN. — In  operating  for  oil  and  gas  the  leases  gen- 
erally provide  that  certain  "test"  wells  shall  be  put 
down  to  determine  whether  oil  or  gas  exists  in  the  lands. 
The  meaning  of  the  word  "test"  in  a  lease  of  lands,  for 
the  production  of  minerals,  is  that  the  lessee  shall  prose- 
cute his  operations  on  the  lands  demised  so  that  the 
operation  may  determine  whether  the  minerals  covered 
by  the  lease  exist  on  the  land  or  not,  and  the  probable 
extent  of  the  minerals  and  their  value;  and  the  cost  of 
production.4  So,  after  the  execution  of  the  lease  and 
during  the  prosecution  of  the  work,  in  making  the  tests, 
no  title  vests  in  the  lessee,  and  his  title  is  dependent, 
upon  the  condition,  that  oil  or  gas  is  found  in  such  quan- 

1.  Huggins  vs.  Daley,  99  Fed.  Rep.,  606;  48  L.  R.  A.,  320;   Steel- 

smith  vs.  Gartlin,  45  W.  Va.,  27;  29  S.  E.,  978. 

2.  Twin  Lick  Oil  Co.  vs.  Marbury,  91  U.  S.,  593;  Huggins  vs. 

Daley,  99  Fed.  Rep.,  606;  48  L.  R.  A.,  320;  Rorer  Iron  Co. 
vs.  Trout,  83  Va.,  397;  2  S.  E.,  713. 

3.  Palmer  vs.  Truby,  136  Pa.  St.,  556;  20  Atl.,  516. 

4.  Petroleum  Co.  vs.  Coal,  Coke  &  Min.  Co.,  89  Tenn.,  381;  18  S. 

W.,65. 


Further  Test  When  First  Fails.  151 

titles  as  will  warrant  the  expenditure  of  money  by  the 
lessee  in  their  production. ' 

SEC.  3.  IF  TEST  WELLS  FAIL  A  FURTHER  TEST 
MUST  BE  MADE — WHAT  is  NOT  DUE  DILIGENCE  UNDER 
THE  TERMS  OF  A  LEASE — ABANDONMENT — WHAT 
AMOUNTS  TO — THE  TEST  WELL  MUST  BE  PUT  DOWN  ON 
THE  TRACT  SPECIFIED  AND  THE  NUMBER  REQUIRED  IN 
THE  LEASE. — In  construing  a  lease  that  made  particular 
provisions  that  a  certain  test  well  should  be  put  down, 
by  the  lessee,  within  a  certain  time,  and  that  certain  dis- 
position would  be  made  of  the  oil,  if  found  in  such  quan- 
tities as  to  warrant  the  marketing"  of  the  oil,  and  the 
lease  made  no  provision  if  the  well  put  down  failed  to 
produce  oil,  which  was  the  case,  the  lessee  was  held 
bound  to  prosecute  the  work  further,  so  as  to  determine 
definitely  whether  oil  existed  or  not.' 

So  where  the  lease  provided  that  the  work  of  testing 
the  land  shall  be  prosecuted  with  due  diligence  to  suc- 
cess or  abandonment,  the  work  must  be  prosecuted  con- 
tinuously after  commenced,  and,  to  cease  operations  for 
a  period  of  three  months,  after  work  was  begun,  is  not 
due  diligence  under  the  terms  of  the  lease.3  So  where  a 
lease  was  made  for  the  exclusive  purpose  of  operating 
for  oil,  and  work  was  to  be  commenced  within  ten  days, 
and  the  work  was  to  be  prosecuted  with  due  diligence  to 
success  or  abandonment,  and,  that  in  case  no  oil  was 
produced  in  paying  quantities,  or  the  lessee  ceased  to 
operate  for  a  period  of  thirty  days,  the  lease  was  to  be 
void,  the  failure  of  the  lessee  to  find  oil  in  a  well  sunk, 
and  ceasing  to  prosecute  operations  for  thirty  days 
thereafter  abrogated  the  lease;  and  the  lessee  could  not 
insist  on  the  validity  of  the  lease  thereafter,  for  that 
would  be  purely  speculative,  and  against  public  policy 
to  have  lands  plastered  over  with  leases,  so  that  no 

1.  Venture  Oil  Co.  vs.  Fretts,  152  Pa.,  451;  25  Atl.,  732;  Huggins 

vs.  Daley,  99  Fed.  Rep.,  606;  48  L.  R.  A.,  320;  Steelsmith 
vs.  Gartlin,  45  W.  Va.,  27;  29  N.  E.,  978. 

2.  Aye  vs.  Philadelphia  Co.,  193  Pa.,  451;  44  Atl.,  555. 

3.  Kennedy  vs.  Crawford,  138  Pa.,  561;  21  Atl.,  19. 


152  Manner  of  Operating. 

work  could  be  prosecuted  under  them  for  the  develop- 
ment of  the  country,  therefore  the  failure  of  the  lessee  to 
sink  other  wells,  which  he  had  a  right  to  do,  ended  his 
rights  under  it.1  To  put  down  a  test  well  on  lands  ad- 
joining will  not  relieve  the  lessee  from  a  forfeiture  when 
the  wells  were  to  be  put  down  on  the  particular  lands 
leased.2  So  the  putting  down  of  one  well,  which  was  a 
dry  well,  will  not  relieve  the  lessee  from  the  payment  of 
rent,  when  two  wells  were  to  be  put  down  by  a  certain 
time  or  pay  rent;8  and  where  a  large  tract  of  land  was 
leased  and  a  royalty  was  to  be  paid  for  each  well,  the 
tract  will  be  treated  as  several  parcels  of  land  and  wells 
will  be  required  to  be  put  down  on  each  or  pay  a  rental.* 

SEC.  4.  LESSEE  MUST  OPERATE  AS  THE  LEASE 
PROVIDES — LEASE  ABANDONED  WHERE  SEARCH  is  MADE 
AND  NO  OIL  OR  GAS  is  FOUND  AND  OPERATIONS  HAVE 
CEASED— WHEN  THE  LESSEE'S  RIGHTS  ARE  AT  AN  END 
IN  CEASING  OPERATIONS — PAYMENT  OF  RENT  WILL  NOT 
PREVENT  A  FORFEITURE  WHERE  PROSPECTIVE  ROYAL- 
TIES ARE  THE  CONSIDERATION  FOR  A  LEASE. — Where 
the  lease  provided  the  mode,  manner  and  character  of 
the  search,  all  implications  in  regard  to  such  operations 
are  excluded  and  the  lessee  must  do  as  the  lease  required 
before  title  will  vest. 5  So,  where  a  lease  provided,  that 
in  case  no  well  shall  be  completed  within  one  month  from 
the  date  of  the  lease,  the  lease  shall  be  null  and  void  and 
without  any  further  effect  whatever,  unless  the  lessee 
paid  fifty  dollars  per  month  for  further  delay,  and  the 
lease  was  to  run  for  a  period  of  five  years,  and  the  lessee 
commenced  operations  but  three  months  had  expired  be- 
fore the  completion  of  the  test  well,  and,  for  that  time, 
the  lessee  paid  at  the  rate  of  fifty  dollars  per  month  for 

1.  Monroe  vs.  Armstrong,  96  Pa.,  307. 

2.  Carnegie  Nat.  Gas  Co.  vs.  Philadelphia  Co.,  158  Pa.,  317;  27 

Atl.,  951;  Jamestown  &  E.  R.  Co.  vs.  Egbert,  25  Atl.,  151; 
152  Pa.,  53. 

3.  Ahrns  vs.  Chartiers  Valley  Gas  Co.,  188  Pa.,  249;  41  Atl.,  739. 

4.  Jamestown  &  E.  R.  Co.  vs.  Egbert,  152  Pa.,  53;  25  Atl.,  151. 

5.  Steelsmith  vs.  Gartlin,  45  W.  Va.,  27;  29  S.  E.,  978. 


Abandonment  of  Search.  153 

the  delay;  but,  on  the  completion  of  the  test  well,  which 
was  dry,  the  lessee  ceased  operations,  and  also  removed 
its  machinery  from  the  premises-,  and  plugged  the  well 
which  was  sunk  and  removed  the  casing  therefrom,  the 
lessee  was  held  to  have  no  title  to  the  oil  or  gas  during 
the  progress  of  the  search  and  title  would  not  vest  unless 
the  oil  or  gas  was  discovered  in  the  search.1  The  only 
right  a  lessee  can  acquire  under  a  lease,  in  the  first  in- 
stance, is  a  license  to  make  the  search;  and,  after  the 
search  was  commenced  and  prosecuted,  and  no  oil  or  gas 
was  found,  and  the  lessee  ceased  to  operate  further,  the 
lessee  had  exercised  all  the  powers  which  the  lease  con- 
ferred upon  the  lessee,  and,  when  operations  once  com- 
menced, ceased  to  be  continued,  the  power  or  the  right 
of  the  lessee  was  at  an  end  and  no  other  operations  could 
be  commenced  without  a  new  lease.8  So  a  lease  for  a 
term  of  five  years  and  "as  much  longer  as  oil  or  gas  is 
found  in  paying  quantities",  and  providing  that  operations 
were  to  begin  within  thirty  days,  and  a  well  completed 
within  ninety  days,  and,  for  failure  to  commence  and 
complete  a  well  within  the  time  specified,  to  pay  a  for- 
feiture of  fifty  dollars;  and  the  lease  further  provided 
that  the  lessee  was  to  receive  one-seventh  of  the  oil  or 
gas  produce  as  a  royalty,  and  a  nominal  consideration 
of  one  dollar  as  a  consideration  for  the  lease,  the  com- 
mencement of  operations  and  the  completion  of  a  well, 
within  the  time  specified,  in  the  lease,  was  a  condition 
precedent  to  the  vesting  of  any  title  or  estate  in  the 
lessee;  therefore  where  no  operations  were  commenced 
by  the  lessee,  no  title  vested.  No  judicial  proceed- 
ings are  necessary  to  avoid  such  a  lease,  as  no  title 
ever  vested,  and  the  fifty  dollars,  to  be  paid  in  case  of 
failure  to  perform  the  work  provided  in  the  lease,  was 
but  a  mere  security  for  its  performance,  and  the  payment 
of  the  fifty  dollars  or  a  tender  of  the  money  to  the  lessor 

1.  Steelsmith  vs.  Gartlin,  45  W.  Va.,  27;  29  S.  E.,  978;  Huggins 

vs.  Daley,  99  Fed.  Rep.,  606;  48  L.  R.  A.,  320;  Venture  Oil 
Co.  vs.  Fretts,  152  Pa.,  461;  25  Atl.,  732. 

2.  Steelsmith  vs.  Gartlin,  45  W.  Va.,  27;  29  S.  E.,  978. 


154  Optional  Leases. 

did  not  relieve  the  lessee  from  sinking  the  wells,  since 
the  prospective  royalty  was  the  consideration  for  the 
lease.  *  So  where  a  lease  was  for  a  period  of  ten  years, 
and  as  much  longer  as  oil  or  gas  is  found  in  paying 
quantities,  providing  that  a  test  well  was  to  be  put  down 
by  a  certain  time,  on  a  tract  of  land,  and  in  case  no  well 
was  put  down  to  pay  the  lessor  ten  cents  per  acre  an- 
nually, the  lessee  put  down  a  well  within  the  time  speci- 
fied in  the  lease,  but  the  well  was  dry,  and  the  lease 
provided  further,  that  the  lessee  should  proceed  with 
due  diligence  to  put  down  test  wells  on  the  land,  but  the 
lessee  made  no  further  tests  for  a  period  of  ten  years, 
the  lease  was  held  to  be  at  an  end,  when  the  lessee 
ceased  to  operate  under  a  belief  no  oil  existed  after  sink- 
ing the  test  well.1  So  a  failure  to  take  possession  of 
land  and  commence  operations  for  a  period  of  twelve 
years  will  give  the  lessee  no  rights  to  the  land,  where 
the  consideration  for  the  lease  was  prospective  royalties 
to  be  realized  from  the  product.3  So  where  operations 
were  postponed  for  twenty  years  the  lessee's  rights  are 
gone.4  And  where  part  of  the  product  was  to  be  turned 
over  to  the  lessor  as  a  royalty,  all  rights  under  a  lease 
were  held  to  be  forfeited  in  equity  where  no  work  was  done 
for  two  years;6  and  where  a  test  is  made,  and  no  oil  is 
found,  and,  on  the  removal  of  the  machinery  from  off  the 
premises,  the  lessee  stated  to  the  lessor  that  operations  on 
the  premises  were  at  an  end,  the  lease  will  be  so  consid- 
ered by  the  courts,  though  the  lease  is  not  delivered  up. e 

SEC.   6.     OPTIONAL  LEASES— WHEN  VOID — LEASE 
MUST  BIND  BOTH  PARTIES  OR  WILL,  BE  VOID  FOR  WANT 

1.  Huggins  vs.  Daley,  99  Fed.  Rep.,  606;  48  L.  R.  A.,  320. 

2.  Foster  vs.  Elk  Fork  Oil  &  Gas  Co.,  61  U.  S.  App.,  576;  90  Fed. 

Rep.,  178;  Elk  Fork  Oil  &  Gas  Co.  vs.  Jennings  (C.  C.  W. 
Va.),  84  Fed.  Rep.,  839;  Venture  Oil  Co.  vs.  Fretts,  152 
Pa.,  451;  25  Atl.,  732. 

3.  Barnhart  vs.  Lockwood,  152  Pa.,  82;  25  A.,  237. 

4.  Wagner  vs.  Malloy,  41  App.  Div.,  126. 

5.  Cole  vs.  Taylor,  8  Pa.,  Super.  Ct.,  19. 

6.  Stage  vs.  Boyer,  183  Pa.,  560;  38  Atl.,  1035;  May  vs.  Hazel- 

wood  Oil  Co.,  152  Pa.,  518;  25  Atl.,  564. 


Optional  Lease  Revocable.  155 

OF  MUTUALITY — AN  OPTIONAL  LEASE  MAY  BE  REVOKED 
AT  ANY  TIME  BY  LESSOR  BEFORE  OPERATIONS  ARE 
BEGUN;  NOR  NEED  THE  LESSEE  PAY  RENT;  AND  DEATH 
PUTS  AN  END  TO  THE  OPTION;  AND  THE  LESSEE  NEED 
NOT  PAY  RENT  OR  SINK  A  WELL — OPTIONAL  LEASES 
VOID  IN  EQUITY — WHEN  A  LEASE  is  NOT  AN  OPTION — 
NOMINAL  CONSIDERATION  FOR  A  LEASE. — Where  an  oil 
or  gas  lease  fails  to  bind  the  lessee  to  prosecute  the 
work  diligently,  and  the  consideration  for  the  lease  is 
part  of  the  oil  or  gas  produced,  the  lease  is  void  for  the 
want  of  mutuality. *  So  where  the  lessee  has  a  right  to 
surrender  the  lease,  at  any  time,  and  be  released  for  all 
liabilities  under  the  lease,  the  lease  is  void  for  the  want 
of  mutuality,  when  the  consideration  for  the  lease  is  a 
part  of  the  product,  hence  the  lessor  may  revoke  the 
lease  at  any  time  before  the  lessee  commences  operations 
on  the  land  for  the  production  of  oil  or  gas.  *  So  a  lease 
giving  the  lessor  a  part  of  the  oil  produced  as  a  consid- 
eration for  the  lease,  and  so  much  per  well  for  gas,  and, 
in  case  no  wells  are  sunk,  the  lease  was  to  be  null  and 
void,  unless  the  lessee  paid  a  certain  sum  in  advance  for 
each  quarter,  the  lease  is  but  an  option  and  does  not 
bind  the  lessee  to  pay  any  sum,  and  may  be  avoided  by 
either  party.3  Since  a  lease  which  does  not  bind  the 
lessee  to  do  anything  and  permits  the  lessee  to  surrender 
the  lease  at  any  time,  such  a  lease  confers  no  right  on 
the  lessee,  other  than  a  mere  right  to  commence  opera- 
tions, so  the  death  of  the  person  who  executed  the  lease 
will  put  an  end  to  the  right  of  the  lessee  to  enter.4 
Where  a  lease  imposes  no  obligation  on  the  lessee  to 
sink  wells,  and  possession  was  never  acquired  by  the 
lessee,  the  lease  is  but  an  option  and  the  lessee  is  not 
bound  to  pay  a  rental  for  any  delay  in  sinking  the  well 

1.  Foster  vs.  Elk  Fork  Oil  &  Gas  Co.,  61  U.  S.  App.,  576;  90  Fed. 

Rep.,  178. 

2.  Eclipse  Oil    Co.  vs.  South  Perm.  Oil  Co.,  47  W.  Va.,84;   34 

S.  E.,  923. 

3.  Snodgrass  vs.  South  Penn.  Oil  Co.,  47  W.  Va.,  84;  35  S.  E., 

820. 

4.  Trees  vs.  Eclipse  Oil  Co.,  47  W.  Va.,  107;  34  S.  E.,  933. 


156  Sufficient  Consideration. 

because  the  lease  did  not  impose  such  an  obligation  on 
the  lessee  and  cannot  be  compelled  to  pay  for  something 
which  the  lease  did  not  require  to  be  performed.1  A 
lease,  by  which  the  lessee  may  postpone  operations  on 
the  payment  of  a  small  sum  of  money,  will  not  be  upheld 
in  equity,  especially  when  the  lessee  led  the  lessor  to 
believe  that  operations  would  begin  in  a  short  time  after 
the  execution  of  the  lease,  since  leases  so  drawn  are 
regarded  as  options.2  But,  in  some  courts,  a  lease  recit- 
ing a  nominal  consideration  of  one  dollar  was  held  not 
to  be  void  for  the  want  of  mutuality,  where  the  lease  was 
to  run  for  two  years  with  the  privilege  of  twenty-five 
years  on  the  payment  of  one  dollar  per  acre.3  A  lease 
which  gives  the  lessee  a  right  to  either  pay  a  rental  or 
sink  a  well,  as  the  lessee  might  choose,  binds  the  lessee 
to  do  one  or  the  other,  where  other  provisions  of  the 
lease  fix  the  time  in  which  operations  must  begin,  and 
the  lessor  retains  a  certain  part  of  the  oil  produced  and 
so  much  a  year  for  gas  wells  and  a  right  to  declare  a  for- 
feiture.4 So  a  lease  reciting  a  consideration  of  one 
dollar,  by  which  the  lessor  demises  the  premises  for  two 
years  and  as  long  thereafter  as  oil  and  gas  is  found  in 
paying  quantities,  not  to  exceed  25  years,  and  the  lessee 
to  pay  a  royalty  on  the  oil  produced,  and  where  no  well 
was  sunk  within  two  years  the  lessee  to  pay  one  dollar 
an  acre  each  year  thereafter  rental,  or  the  lands  to  be 
forfeited  for  failure  to  pay,  was  held  not  to  be  an  option 
and  the  one  dollar  paid  at  the  execution  of  the  lease 
supported  the  grant  for  the  two  years  and  also  the  privi- 
lege of  extending  the  time.5 

SEC.  6.     OPERATIONS  MUST  BE  PROSECUTED  CON- 
TINUOUSLY WHEN  REQUIRED  TO  BE  COMMENCED  BY  A 

1.  Diamond  Plate  Glass  Co.  vs.  Tennell,  22  Ind.  App.,  132;  52 

N.  E.,  168;  McKee  vs.  Colwell,  7  Pa.,  Super.  Ct.,  607. 

2.  Eclipse  Oil  Co.  vs.  South  Perm.  Oil  Co.,  47  W.  Va.,  107;  34  S. 

E.,923. 

3.  Brown  vs.  Ohio  Oil  Co.,  21  Ohio  C.  C.,  117. 

4.  McMillan  vs.  Philadelphia  Co.,  159  Pa.,  142;  28  Atl.,  220. 

5.  Allegheny  Oil  Co.  vs.  Snyder,  106  Fed.  Rep.,  764. 


Time  the  Essence  of  Oil  and  Gas  Leases.  157 

CERTAIN  TIME — TIME  THE  ESSENCE  OP  OIL  AND  GAS 
LEASES.— Under  the  provisions  of  a  lease  that  the  lessee 
must  beg-in  boring1  for  oil  by  a  certain  date,  the  lease 
contemplates  that  the  lessee  shall  continue  operations 
thereafter  until  the  land  is  tested  to  the  satisfaction  of 
the  lessee;  and,  to  commence  within  the  time  specified  in 
the  lease,  and  then  to  postpone  operations  for  an  indeli-~ 
nite  term,  is  not  a  compliance  with  the  lease. 1  And  the 
fact  that  the  lessee  was  prevented  on  account  of  the 
inclemency  of  the  weather  will  not  excuse  the  lessee.* 
And  where  the  lessee  is  required  to  commence  a  well  by 
a  certain  time  and  complete  the  same  by  a  certain  time,  a 
forfeiture  may  be  declared  for  not  commencing1  opera- 
tions within  the  time  specified  or  completing1  the  well 
within  the  time  specified  after  operations  are  begun.* 
So  where  a  lease  provided  that  work  shall  beg-in  by  a 
certain  time  and  no  work  was  done  on  the  premises,  and 
the  lessor  reserved  the  rig-ht  to  declare  forfeiture  for 
non-compliance  therewith,  the  lease  becomes  absolutely 
void  as  to  the  lessee  upon  the  expiration  of  the  time  lim- 
ited.4 The  courts  are  inclined  to  the  doctrine  that  time 
is  the  essence  of  all  contracts  relating1  to  mineral  prop- 
erty, though  the  contract  does  not  so  provide. B 

SEC.  7.  WHEN  WORK  is  COMMENCED  IN  COMPLIANCE 
WITH  THE  LEASE — QUESTION  FOR  THE  JUR^ — BUYING 
MACHINERY,  LETTING  CONTRACT  OR  WORKING  UP  LUM- 
BER TO  BE  USED  IN  OPERATIONS  ARE  SUFFICIENT  COM- 
MENCEMENT— NOTICE  MUST  BE  GIVEN  LESSEE  WHEN 
LEASE  REQUIRES  AND  LESSEE  HAS  A  RIGHT  TO  PAY  A 
RENTAL — ESTOPPEL  OF  LESSOR  THOUGH  THE  TIME  HAS 
EXPIRED. — The  commencement  of  the  work  to  drill  for 
oil  or  gas  is  complied  with  by  beginning  work  in  the 
afternoon  of  the  last  day,  in  which  work  was  to  com- 

1.  McNish  vs.  Stone,  152  Pa.,  457;  23  Pitts.  L.  J.  N.  S.,  232. 

2.  Cryan  vs.   Ridelspergen,  7  Pa.  Co.  Ct.,  473;  Steelsmith  vs. 

Gartlan,  45W.  Va.,27. 

3.  Cleminger  vs.  Baden  Gas  Co.,  159  Pa.,  16;  28  Atl.,  293. 

4.  Island  Coal  Co.  vs.  Combs,  152  Ind.,  379;  53  N.  E.,  452. 

5.  Waterman  vs.  Banks,  144  U.  S.,  394. 


158  When  Operations  are  Begun. 

mence,  and  the  prosecution  of  the  work  thereafter  in 
good  faith. 1  So  an  oil  lease  which  required  that  opera- 
tions to  sink  a  well  should  begin  within  four  months 
after  the  execution  of  the  lease,  and  that  such  operations 
should  be  prosecuted  with  due  diligence,  it  is  a  question 
of  fact  for  the  jury  to  determine  whether  the  hauling  of 
lumber  on  the  ground,  to  be  used  in  a  well,  to  be  sunk  on 
the  premises,  on  the  day  before  the  lease  expired^  is  a 
commencement  of  operations  when  there  is  evidence  of 
men  familiar  with  the  business  that  such  an  act  is 
regarded  as  commencing  operations.  *  So  where  the  lessee 
selected  the  place  where  the  well  would  be  drilled  and 
hauled  lumber  there  to  be  used  in  the  derrick,  and  the 
drilling  machine,  and  necessary  tools  were  ordered,  and 
the  contract  for  sinking  the  well  was  made,  the  facts 
showed  a  sufficient  compliance  with  the  lease,  that  opera- 
tions were  to  begin  by  a  certain  time,  though  the  drilling 
machine  and  tools  were  not  on  the  ground  because  the 
roads  were  bad  on  account  of  heavy  storms  which  pre- 
vailed for  some  time.3  So  when  lumber  is  brought  on 
the  ground  and  partially  worked  up  on  the  last  day, 
before  the  lease  would  become  void  for  not  beginning 
operations,  the  acts  of  the  lessee  were  held  to  be  suffi- 
cient, when  done  in  good  faith,  to  save  the  lease  from  for- 
feiture.4 Where  a  lease  was  subject  to  be  forfeited  for 
not  beginning  operations  within  a  certain  time  upon  a 
written  notice  from  the  lessor,  and  the  lease  gave  the 
lessee  a  right  to  continue  the  lease  on  the  payment  of  a 
rental,  a  notice  to  the  lessee  of  a  forfeiture  is  required  in 
order  to  work  a  forfeiture,  though  operations  were  not 
begun  within  the  time  specified  in  the  lease,  because  the 
lessee  might  exercise  his  right  to  pay  a  rental  to  save 
the  lease  from  forfeiture,  and  the  making  of  a  second 
lease  is  not  a  sufficient  notice. *  And  where  the  lessor, 

1.  Henderson  vs.  Farrell,  183  Pa.,  547;  38  Atl.,  1018. 

2.  Forney  vs.  Ward,  —  Tex.,  Civ.  App.  — ;  62  S.  W.,  108. 

3.  Fleming  Oil  &  Gas  Co.  vs.  South  Penn.  Oil  Co.,  37  W.  Va., 

C45;  17  S.  E.,203. 

4.  Duffield  vs.  Russell,  19  Ohio  C.  C.,  266. 

5.  South  Penn.  Oil  Co.vs.  Stone  (Ten.  Ch.  App. ) ,  57  S.  W. ,  374. 


Forfeiture  for  Failure  to  Begin  Work  or  Pay  Rental.    159 

either  by  express  consent  or  by  acts  after  the  expiration 
of  the  time  to  do  the  work,  permitted  the  lessee  to 
expend  time  and  money  in  putting  down  wells,  the  lessor 
will  be  estopped  from  declaring  the  lease  forfeited;1  or 
where  work  was  done  after  a  default  in  the  payment  of 
the  rent  due,  and  the  lessor  does  not  object,  the  leasejs 
still  in  force;2  or  where  four  wells  were  to  be  commenced 
and  completed  in  the  second  year,  two  the  first  six  months 
two  the  last  six  months,  the  lease  was  substantially  com- 
plied with  by  putting  the  four  wells  at  any  time  during 
the  year.8  A  well  is  considered  as  commenced  and  com- 
pleted if  a  well  is  drilled  and  oil  is  found,  though  the 
lessee  thereafter  removes  the  casing  and  plugs  the  well;4 
but  not  so  if  oil  is  required  to  be  produced  in  paying 
quantities;8  or  the  lease  calls  for  an  oil  well  and  only  a 
gas  well  is  produced. 6 

SEC.  8.  FORFEITURE— LEASE  FORFEITED  WHEN 
WORK  is  NOT  BEGUN  OR  THE  RENTAL  PAID  AS  THE 
LEASE  PROVIDES — No  RELIEF  GIVEN  IN  A  COURT  OF 
EQUITY  TO  A  LESSEE  THOUGH  RENT  is  PAID  AFTER  FOR- 
FEITURE WHERE  ANOTHER  LEASE  WAS  MADE  BEFORE 
THE  RENT  WAS  PAID — LEASE  MAY  BE  FORFEITED  BY 
ABANDONMENT  THOUGH  THE  LEASE  CONTAINS  NO 
CLAUSE  OF  FORFEITURE. — Leases  of  land  for  the  pro- 
duction of  oil  or  gas  usually  provide  that,  in  the  event 
the  lessee  fails  to  operate  for  oil  and  gas,  the  lessee  has 
the  option  of  paying  a  certain  rental,  in  place  of  operat- 
ing on  the  premises,  and  that  such  rental  will  be  paid 
during  the  time  the  lessee  fails  to  begin  operations  after 
the  time  specified  in  the  lease.  So  a  lease  which  pro- 
vided that  operations  shall  begin  within  nine  months,  or 
for  failure  to  begin  work  within  the  time  specified  in  the 
lease,  a  certain  rental  was  to  be  paid,  and  the  money  was 

1.  Elk  Fork  Oil  &  Gas  Co.  vs.  Jennings,  84  Fed.  Rep.,  839. 

2.  McCarthy  vs.  Mellon,  5  Pa.  Dist.  R.,  425. 

3.  Thomas  vs.  Kirkbride,  15  Ohio  C.  C.,  294. 

4.  Stahl  vs.  Van  Vleck,  53  Ohio  St.,  136;  41  N.  E.,  35. 

5.  Kennedy  vs.  Crawford,  138  Pa.,  561;  21  Atl.,  19. 

6.  Palmer  vs.  Truby,  136  Pa.,  556;  20  Atl.,  516. 


160  Relief  Not  Given  in  Equity. 

to  be  deposited  in  the  hands  of  a  certain  person  each  and 
every  month,  after  the  expiration  of  nine  months,  and, 
in  case  the  lessee  failed  to  begin  operations  or  pay  the 
rent,  the  failure  was  to  work  an  absolute  forfeiture,  was 
held  to  be  forfeited,  where  no  operations  were  begun 
under  the  lease  for  a  period  of  thirty-five  months,  and 
no  rent  was  ever  paid  until  about  thirty-one  months 
after  the  execution  of  the  lease,  and  about  twenty-five 
months  after  the  execution  of  the  lease,  the  lessor  exe- 
cuted a  second  lease  to  the  premises,  with  notice  of  the 
first  lease  to  the  lessee,  and  after  the  execution  and 
recording  of  the  second  lease,  the  lessor  accepted  all  the 
rent  due  on  the  first  lease,  though  its  acceptance  was 
first  refused,  and  the  first  lessee  began  operations  with- 
out the  consent  of  the  second  lessee  and  found  large 
quantities  of  oil  and  continued  in  possession  until  a  suit 
was  brought  by  the  second  lessee.  The  first  lessee's 
rights  were  barred  since  the  lease  was  held  upon  the 
express  condition  that  the  lessee  would  begin  operations 
in  nine  months,  or  for  failure  to  do  so,  to  pay  a  certain 
monthly  rental,  and  for  failure  to  do  either,  the  lease 
was  absolutely  forfeited  by  the  execution  of  the  second 
lease;  and  the  acceptance  of  the  rent,  after  the  execu- 
tion of  the  second  lease,  could  not  affect  the  rights  of 
the  second  lessee;1  nor  will  the  mere  payment  of  the 
rent,  after  the  execution  of  the  second  lease,  give  the 
first  lessee  any  standing  in  a  court  of  equity  for  relief 
against  the  forfeiture.9  So  where  the  lessee  was  to 
commence  operations  within  sixty  days,  and,  for  failure 
to  do  so,  a  certain  monthly  rental  was  to  be  paid,  and 
the  failure  on  the  part  of  the  lessee  to  do  one  or  the 
other,  was  to  work  a  forfeiture  of  the  lease  and  the  lessor 
could  enter  and  dispose  of  the  lands  as  if  no  lease  was 
made,  time  was  held  to  be  the  essence  of  the  lease 
because  one's  lands  might  be  drained  of  all  the  oil  by 
operation  on  adjacent  lands,  and  for  failure  of  the  lessee 

1.  Guffey  vs.  Hukill,  34  W.  Va.,  49;  11  S.  E.,  754;  Hukill  vs. 

Meyers,  36  W.  Va.,  639;  15  S.  E.,  157. 

2.  Hukill  vs.  Guffey,  37  W.  Va.,  524;  16  S.  E.,  541. 


When  Lease  Not  Forfeited.  161 

to  begin  operations  within  the  time  specified;  and,  after 
the  expiration  of  the  time  to  begin  operations,  the  failure 
to  pay  the  monthly  rental  worked  an  absolute  forfeiture 
of  the  lease  and  the  second  lessee  acquired  good  title.1 
So  a  lease  containing  similar  provisions  was  properly 
declared  forfeited  by  the  lessor,  where  no  operations 
were  begun  within  the  time,  and  a  monthly  rental  was 
to  be  paid  each  month,  and  several  months'  rent  was  due, 
and  unpaid,  though  the  rent  for  the  last  month  was  paid.  * 
And  where  the  lease  makes  no  provision  as  to  a  forfeiture 
of  the  lease,  in  the  event  the  lessee  fails  to  operate  on 
the  premises,  or  pay  the  specified  rental,  the  fact,  that 
the  lessee  does  not  in  any  way  comply  with  the  lease, 
may  be  sufficient  from  which  an  inference  may  be  drawn 
that  the  lessee  abandoned  the  lease.3  A  person  who 
went  upon  the  land  with  his  machinery  for  the  purpose 
of  putting  down  a  well,  at  the  request  of  an  interested 
party,  but  failed  to  put  down  the  well  because  consent 
could  not  be  obtained  from  another  interested  party,  may 
take  a  lease  from  the  owner  after  a  declaration  of  for- 
feiture of  the  first  lease  and  can  hold  it  against  the  first 
lessee  although  he  entered  as  agent  of  one  of  them.4 

SEC  9.  A  LEASE  WILL  NOT  ipso  facto  BECOME  VOID 
OR  FORFEITED  BECAUSE  THE  PROVISIONS  ARE  NOT  FUL- 
FILLED—THE LEASE  MUST  PROVIDE  THAT  THE  NONFUL- 
FILLMENT OF  THE  PROVISIONS  WILL  BE  GROUNDS  OF 
FORFEITURE  BUT  THE  CONTRARY  DOCTRINE  THE  MOST 
REASONABLE. — A  provision  in  an  oil  lease  that  the  lessee 
will  begin  operations  by  a  certain  time,  or  pay  a  rental, 
and  there  is  a  provision  for  a  forfeiture,  in  case  the 
lessee  does  neither,  the  lease  will  not  be  forfeited  ipso 
facto  by  doing  neither,  and  the  making  of  a  second  lease, 
after  the  lessee  fails  to  do  either,  will  not  have  the  effect 

1.  Brown  vs.  Vandergrift,  80  Pa.,  142. 

2.  Duffield  vs.  Michaels,  97  Fed.  R.  (C.  C.  W.  Va.),  825;  Pen- 

dill  vs.  Union  Min.   Co.,  64  Mich.,  172;    Alexander  vs. 
Hodges,  41  Mich.,  691;  Garner  vs.  Hannah,  6  Duer.,  270. 

3.  Marshall  vs.  Forest  Oil  Co.,  198  Pa.,  83;  47  Atl.,  927. 

4.  Duffield  vs.  Michaels,  97  Fed.  Rep.,  825. 


162  Lessor  Estopped  to  Declare  a  Forfeiture. 

of  a  declaration  of  a  forfeiture  by  the  lessor;1  and  there 
is  no  grounds  for  forfeiture  where  the  lessee  neither  pays 
rent  or  operates  on  the  premises,  as  the  lease  required 
the  lessee  to  do,  where  the  lease  does  not  provide  that 
doing"  neither  shall  work  a  forfeiture.2  But  the  more 
reasonable  doctrine  is  that  the  failure  of  the  lessee  to 
begin  operations  within  the  time  specified,  in  the  lease, 
will  nullify  all  rig-hts  of  the  lessee  under  the  lease,  as 
such  operations  are  a  condition  precedent  to  the  vesting- 
of  any  title  in  the  lessee;  and  even  a  small  rental  paid 
will  not  save  the  lease  from  becoming1  null  and  void, 
when  the  main  consideration  for  the  lease  is  the  royal- 
ties to  be  realized  from  operations  on  the  lands,  and  the 
rental  will  be  regarded  as  a  security  or  a  penalty  that 
operations  will  be  commenced  on  the  land. 3  A  forfeiture 
was  permitted  to  be  declared  where  the  lease  provided 
that  certain  thing's  shall  be  done  by  a  certain  time 
or  pay  a  forfeiture,  and  no  forfeiture  was  provided  in  the 
lease,  the  space  was  left  blank."1  But  it  was  he]d  by  a 
lower  court  the  lease  must  specify  the  condition  the  for- 
feiture may  be  declared,  or  it  will  be  of  no  effect.5 

SEC.  10.  ESTOPPEL  OF  LESSOR — REASONABLE  TIME 
TO  PAY. — A  lessor  will  be  estopped  from  declaring1  a  for- 
feiture where  a  well  was  not  commenced  within  the  time 
specified  in  the  lease  or  the  money  paid  for  failure  to  com- 
mence the  well,  and  the  well  was  not  completed  until  after 
the  time  specified,  and  no  money  paid  for  the  non- com- 
pletion of  the  well,  until  after  the  expiration  of  the  time 
the  money  was  to  be  paid,  and  then  the  lessee  paid  only 
the  amount  due  for  not  commencing-  in  time,  and,  some 
time  thereafter,  the  amount  was  tendered  for  the  non- 

1.  Akin  vs.  Marshall  Oil  Co.,  188  Pa.,  614;  41  Atl.,  748. 

2.  Marshall  vs.  Forest  Oil  Co.,  198  Pa.,  83;  47  Atl.,  927. 

3.  Huggins  vs.  Daley,  99  Fed.   Rep.,   606;    48  L.  R.  A.,  320; 

Foster  vs.  Elk  Fork  Oil  &  Gas  Co.,  61  U.  S.  App.,  576;  90 
Fed.  R.,  178;  Steelsmith  vs.  Gartlan,  45  W.  Va.,  27;  27 
N.  E.,  978;  Venture  Oil  Co.  vs.  Fretts,  152  Pa.,  451;  27 
Atl.,  732. 

4.  Eaton  vs.  Wilcox,  122  N. Y.  416,  25  N.E.  981. 

5.  Vandervoort  vs.  Dewey,  42  Hun.,  68. 


Surrender  of  Lease  by  Contract.  163 

completion  of  the  well  in  time,  but  the  lessee  refused  to 
accept  the  money,  where  the  lessor,  after  the  expira- 
tion of  the  time,  permitted  the  lessee  to  select  a  place  for 
a  well  on  the  lands  leased,  after  the  time  for  operation 
had  expired,  and  sold  fuel  to  the  lessee,  which  was  used 
in  the  prosecution  of  the  work  on  the  premises,  and 
built  a  dam  for  the  lessee  to  furnish  water  needed  in  tEe 
operations. 1  And  where  the  rent  was  not  paid  on  the 
day  specified  in  the  lease,  and  the  lessee  continued  to 
operate  on  the  premises,  and  the  money  expended  by  the 
lessee,  after  the  ground  of  forfeiture  existed,  exceeded 
three  times  the  annual  rent,  and  the  lessee  did  not  act 
promptly,  the  lessor  will  not  be  entitled  to  a  forfeiture 
in  equity.  *  So  where  rent  was  to  be  paid  for  failure  to 
complete  a  well,  a  reasonable  time  is  allowed  after  the 
expiration  of  the  time  to  pay,  or  when  the  rent  becomes 
due.3  So  a  lessor  will  not  be  permitted  to  declare  a  for- 
feiture because  the  wells  were  not  put  down  in  time, 
when  the  lessor  prevented  operations  on  the  premises 
by  enjoining"  the  lessee.4  And  the  sinking  of  wells  on 
adjoining  lands,  which  may  drain  the  lessor's  land,  is  not 
a  ground  of  forfeiture  unless  the  lease  so  provides.6 

SEC.  11.  SURRENDER  OF  A  LEASE  BY  MUTUAL,  CON- 
SENT— ACCEPTANCE  BY  HEIR  BINDING  ON  CO-HEIR, 
THOUGH  A  MINOR,  WHEN  BENEFITED  THEREBY — AS- 
SIGNEE MAY  GIVE  UP  THE  LEASE  TO  LESSOR  BUT  is 
NOT  RELIEVED  FROM  STIPULATIONS  IN  THE  ASSIGN- 
MENT, ALTHOUGH  A  NEW  LEASE  is  TAKEN — LESSEE 
CANNOT  SURRENDER  LEASE  WHEN  THE  LEASE  WAS  MADE 
BY  TENANT  FOR  LIFE  WHO  DIED,  WHEN  THE  REMAINDER 
MAN  WISHED  TO  CONTINUE  THE  LEASE. — Where  the  work 
has  not  been  prosecuted,  as  the  lease  specified,  and  the 
lease  is  surrendered  by  the  lessee  and  accepted  by  the 

1.  Duffield  vs.  Michaels,  102  Fed.  E.,  820. 

2.  Lynch  vs.  Morsville  Fuel  &  Gas  Co.,  165  Pa.,  518;  30  A.,  984. 

3.  Northwestern  Ohio  Nat.  Gas.  Co.  vs.  Browning,  15  Ohio  C.  C., 

84. 

4.  Stahl  vs.  Van  Vleck,  53  Ohio  St.,  136;  41  N.  E.,  35. 

5.  Ohio  Oil  Co.  vs.  Harris,  1  Ohio  Dec.,  157. 


164  Ofier  to  Surrender. 

heir  of  the  lessor,  such  a  surrender  will  be  binding1  on 
both  parties,  and  no  rent  can  be  recovered  under  the 
lease  thereafter  by  the  heir;1  and  such  a  surrender  will 
be  binding  on  the  co-heirs,  though  minors,  when  the 
minors  will  be  benefited  by  the  yielding-  up  of  the  lease, 
although  the  co-heir,  who  accepted  the  surrender,  was 
not  authorized  to  act  for  the  minors. 2  So  an  assignee  of  a 
lease  can  surrender  the  same  to  the  lessor  and  take  a  new 
lease  from  the  lessor  but  he  will  not  be  relieved  from  a 
provision,  in  the  assignment,  that  in  addition  to  the  cash 
payment  for  the  assignment  the  assignee  was  to  pay  a 
certain  amount  for  each  productive  well  drilled  under 
the  lease;8  but  a  lessee  has  no  right  to  yield  up  a  lease, 
because  the  lessor  only  had  a  life  estate  and  the  lessor 
died,  where  the  persons  who  are  entitled  to  the  estate 
signify  their  desire  to  keep  the  lease  in  force  during  the 
unexpired  term  by  joining  in  the  lease.4 

So  where  an  action  was  brought  to  cancel  a  lease  for 
the  production  of  oil  on  the  grounds  that  the  lessee 
failed  to  develop  the  land,  and  protect  the  land  by  hav- 
ing wells  bored  along  the  lines,  so  that  the  land  would 
not  be  drained  through  wells  on  other  adjacent  lands, 
and  during  the  pendency  of  the  suit  a  compromise  was 
offered  in  writing  which  was  as  follows: 

CORSICANA,  TEXAS,  March  25,  1899. 
G.  W.  Croft,  Esq.— DEAR  SIR:  The  Southern  Oil  Com- 
pany will  part  with  its  Wilson  and  Sweatman  oil  lease, 
together  with  their  wells  located  on  it,  for  the  current 
market  price  of  the  material  in  and  attached  to  said 
wells.  This  includes  all  the  property,  tanks,  tank 
houses,  pumping  outfit,  derrick  and  every  other  charac- 
ter of  property  owned  by  the  Southern  Oil  Company 
on  said  lease.  This  proposition  is  made  to  you  as  a 
compromise  for  Wilson  &  Sweatman  and  is  meant  as  a 
compromise  offer. 

SOUTHERN  OIL  COMPANY,  BY 

S.  W.  JOHNSON,  Pres. 

1.  Wilson  vs.  Goldstein,  152  Pa.,  524;  25  Atl.,  493. 

2.  Wilson  vs.  Goldstein,  152  P.,  524;  25  Atl.,  493. 

3.  Smith  vs.  Munhall,  139  Pa.,  253;  21  Atl.,  735. 

4.  L.  G.  Gas  &  Coke  Co.  vs.  Patterson,  184  Pa.,  364;  39  Atl.,  68. 


Termination  of  a  Lease.  165 

And  at  the  time  of  this  offer  of  compromise  there 
was  an  outstanding-  option  of  the  oil  lease  for  a  sale  of 
it,  and  the  company  requested  the  plaintiff  to  wait  until 
a  certain  day  before  accepting1  the  compromise,  and  the 
plaintiff  did  as  requested,  and  on  that  day  accepted  the 
compromise,  and  the  company,  on  that  day,  also  sold  a 
majority  of  its  stock  to  a  third  person,  and  the  plain- 
tiff, with  full  knowledge  of  the  sale  of  the  stock, 
elected  to  accept  the  compromise,  the  acceptance  of  the 
compromise  was  held  to  be  binding  on  all  the  parties, 
the  purchaser  of  the  stock,  as  well  as  the  party  offering 
to  compromise,  and  that  the  sale  of  the  stock  did  not 
affect  or  have  the  effect  of  withdrawing-  the  offer,  since 
the  legal  title  remained  in  the  party  offering  to  compro- 
mise. Nor  was  the  contract  invalid  because  the  offer 
did  not  state  whether  "current  market  price"  referred  to 
new  or  second-hand  materials. * 

SEC.  12.  TERMINATION  OF  A  LEASE  BY  ITS  OWN 
PROVISIONS — OIL  OR  GAS  MUST  BE  PRODUCED  WITHIN 
THE  TIME  SPECIFIED  IN  THE  LEASE — "OR  AS  LONG  AS 
OIL  OR  GAS  is  PRODUCED  IN  PAYING  QUANTITIES"  IN  A 
LEASE  WILL  NOT  EXTEND  THE  LEASE  WHEN  OIL  OR 
GAS  is  NOT  POUND  WITHIN  THE  SPECIFIED  TIME. — A 
lease  which  provides  that  the  term  of  the  lease  shall  be 
ten  years  and  as  long  thereafter  as  oil  and  gas  is  found 
in  paying  quantities,  and  no  oil  or  gas  was  found  within 
the  ten  years  the  lease  was  terminated,  at  the  end  of  ten 
years;  and,  if  the  lessee  finds  oil  and  gas  after  that  time, 
only  a  tenancy  at  will  exists  between  the  landlord  and 
tenant,  and  the  lease  may  be  terminated  at  any  time.2 
So  where  the  lease  was  for  two  years  and  "as  much 
longer  as  oil  and  gas  would  be  found  in  paying  quanti- 
ties," and  the  lessee  was  to  commence  a  well  in  thirty 
days,  and  complete  the  same  in  ninety  days,  and,  in  case 
no  well  was  put  down  and  completed  in  the  ninety  days, 
the  lessee  was  to  pay  the  lessor  sixty  dollars  annually, 

1.  Southern  Oil  Company  vs.  Wilson,  22  Civ.  App.,  534;  56  S. 

S.W.,  429. 

2.  Cassell  vs.  Crothers,  193  Pa.,  359;  44  Atl.,  446. 


166  Selection  of  a  Place  to  Operate. 

and  the  consideration  for  the  lease  was  a  certain  part  of 
the  product  as  a  royalty,  the  lease  was  terminated  at 
the  end  of  two  years,  and  the  payment  of  the  sixty 
dollars  will  not  serve  to  prolong  the  lease  since  the  term, 
beyond  the  two  years,  was  dependent  on  the  fact  that  oil 
or  gas  was  produced  in  paying"  quantities  within  the  two 
years,  and,  as  no  wells  were  sunk  by  the  lessee,  the  oil 
or  gas  was  not  produced  in  paying  quantities.1  So  if  the 
lessee  is  to  produce  oil  within  two  years  or  the  lease  is 
terminated,  the  production  of  oil  by  a  third  person,  not 
acting  under  the  lease,  will  not  prolong  the  lease  if  the 
lessee  fails  to  find  the  oil  within  the  two  years;8  but  if 
oil  or  gas  is  found  it  is  for  the  lessee  to  say  whether  it  is 
produced  in  paying  quantities  under  a  lease  conditioned 
that  oil  or  gas  is  produced  in  paying  quantities.8' 

SEC.  13.  SELECTION  OF  THE  PLACE  TO  OPERATE 
UPON,  OUT  OF  A  LARGER  TRACT  BINDS  LESSOR — 
ESTOPPEL  OF  LESSOR  WHERE  WRITTEN  CONSENT  is 
GIVEN  OR  LEASE  PROVIDES  THAT  SELECTION  TO  BE 
MADE  BY  PARTIES  —  THE  LEASE  is  NOT  VOID  AS 
AGAINST  THE  STATUTE  OF  FRAUDS — RIGHT  OF  THE 
LESSEE  TO  BORE  ON  THE  LANDS  AFTER  THE  TEST  is 
MADE  AND  OIL  OR  GAS  is  FOUND. — Where  the  lease 
covers  a  large  tract  of  land  and  provides  that  certain 
parts  of  the  land  shall  be  selected  by  the  lessor,  the 
lessor,  in  exercising  his  right  to  make  the  selection 
under  the  lease,  is  bound  by  the  selection  made  when  the 
lessee  assented  to  the  selection  and  bored  a  well  on  the 
tract  selected  by  the  lessor;4  and  where  the  lessor  re- 
served the  right  in  the  lease,  to  select  four  acres  around 
his  premises,  upon  which  no  wells  could  be  drilled, 
by  the  lessee,  without  lessor's  written  consent,  the  selec- 
tion of  the  four  acres  and  the  giving  of  the  written  con- 


1.  Western  Penn.   Gas.   Co.  vs.  George,  161  Pa.,  47;  28  Atl., 

1004. 

2.  Thomas  vs.  Hukill,  34  W.  Va.,  385;  12  S.  E.,  522. 

3.  Young  vs.  Forest  Oil  Co.,  194  Pa.  St.,  243;  45  Atl.,  121. 

4.  Stahl  vs.  Van  Vleck,  53  Ohio  St.,  136;  41  N.  E.,  35. 


Covenants  Running  with  Land.  167 

sent,  by  the  lessor,  and  the  sinking1  of  one  well,  under 
such  a  written  consent,  and  the  boring"  of  another  well, 
under  the  implied  consent  of  the  lessor,  and  the  payment 
of  the  royalty,  by  the  lessee,  will  prevent  a  forfeiture  of 
the  lease  when  the  wells  are  productive  and  the  lessor 
undertakes  to  have  the  lease  forfeited  on  the  ground- 
that  the  wells  are  not  productive.1  So  where  the  lessor 
had  the  rig-ht  to  make  the  selection  of  the  tract  to  be 
operated  for  a  test  well,  when  the  selection  was  made, 
and  the  lessee  found  oil,  the  lessee  had  a  right  to  oper- 
ate upon  forty  acres  of  the  tract,  on  which  oil  was  found, 
or  upon  either  of  two  forty  acres  adjoining,  the  lessee 
has  a  right  to  select  the  other  forty  acres  of  which  the 
tract  selected  by  the  lessor  formed  a  part.2  The  selec- 
tion of  sites  to  be  worked  out  of  a  larger  tract  does  not 
affect  the  validity  of  the  lease,  nor  does  the  right  to 
change  the  places  designated  in  the  lease;3  and,  where 
the  lease  designates  the  places  to  be  worked  by  the 
lessee,  and  further  provides  that,  if  the  lessor  sees  fit  to 
bore  more  wells,  the  lessee  will  have  the  right  to  do  so, 
the  lessee's  rights  in  the  premises  are  confined  to  the 
places  designated  in  the  lease,  unless  the  lessor  exer- 
cises the  option  to  have  more  wells  bored;  and  if  the 
lessor  concludes  to  have  more  wells  put  down,  the  lessee 
has  a  right  to  put  them  down  under  the  terms  of  the 
lease.4  So  when  a  dispute  arises  as  to  the  location  of 
the  well,  whether  it  is  on  the  lands  described  in  the 
lease,  it  is  ordinarily  a  qestion  of  fact  for  the  jury  to 
determine. 5 

SEC.  14.  COVENANTS  RUNNING  WITH  LAND — COVE- 
NANTS TO  GIVE  PART  OF  THE  PRODUCT  AS  A  ROYALTY — 
COVENANT  TO  PAY  FOR  LAND  USED  IN  CONNECTION 

1.  Balfour  vs.  Russell,  167  Pa.,  287;  31  Atl.,  570. 

2.  Stahl  vs.  Van  Vleck,  523  Ohio  St.,  136;  41  N.  E.,  35. 

3.  Indianapolis  Nat.  Gas  Co.  vs.  Spaugh,  17  Ind.  App.,  683;  46 

N.  E.,  601;  Diamond  Plate  Glass  Co.  vs.  Tennell,  22  Ind. 
App.,  132;  52  N.  F.,168. 

4.  Duffield  vs.  Hue,  136  Pa.,  602;  20  Atl.,  326. 

5.  Hamilton  vs.  Pittock,  158  Pa.,  457;  27  Atl.,  1079. 


168  Personal  Covenants. 

WITH  OPERATIONS  RUN  WITH  LAND  —  COVENANTS  THAT 
A  SHAFT  SHALL  NOT  BE  SUNK  ON  THE  LAND  RUNS  WITH 
THE  LAND.  —  A  covenant  in  a  lease  that  the  lessee  will 
give  the  lessor  a  part  of  the  minerals  produced,  will  run 
with  the  land.1  So  a  covenant  in  a  lease  that  the  lessee 
shall  pay  a  certain  per  cent  of  the  oil  produced  to  the 
lessor,  runs  with  the  land  and  will  be  binding  on  the 
assignee  or  grantee;*  and  where  a  lease  provided  that 
the  lessee  shall  pay  the  lessor  for  the  surface  of  the 
ground  which  may  be  used  as  a  dumping  ground,  runs 
with  the  land  and  the  grantee  of  the  lessor  may  enforce 
the  covenant.3  So  a  covenant  in  a  deed  providing  that 
no  shaft  shall  be  sunk  on  the  land  for  the  production  of 
the  coal  which  is  reserved  by  the  grantor,  runs  with  the 
land,  and  is  binding  on  the  assignee  of  the  coal  rights; 
though  such  assignee  purchases  part  of  the  land  subjected 
to  the  covenant,  since  the  covenant  is  for  the  benefit  of 
other  land  owners.1*  And  all  covenants  in  a  lease  to  pay 
rent  or  royalty  in  oil  and  gas  leases,  runs  with  the  land 
and  is  binding  on  the  assignee  to  pay  rent  during  the 
time  the  estate  is  vested  in  the  assignee.  B 

SEC.  15.  PERSONAL  COVENANTS  —  BINDING  ONLY 
ON  THE  PARTIES  TO  THE  CONTRACT.  —  Where  the  lessee 
of  a  mine  covenanted  in  the  lease  that  the  lessee's  entire 
time  would  be  devoted  to  the  interest  of  the  mine  cov- 
ered by  the  lease  is  but  a  personal  covenant  between  the 
lessor  and  lessee,  and  on  the  assignment  of  the  lease  the 
lessee  may  operate  another  mine  and  the  assignee  has 
no  cause  to  complain;6  and  covenants  on  the  part  of  the 
lessors,  that,  at  the  expiration  of  the  lease,  all  the  im- 
provements necessary  for  the  prosecution  of  the  work 
of  mining,  and  all  tools  connected  therewith,  would  be 


1.  Crawford  vs.  Witherbee,  77  >^is.,  419;  46  N.  W.,  545. 

2.  Akin  vs.  Marshall  Oil  Co.,  188  Pa.,  614;  41  Atl.,  748. 

3.  Schoaley  vs.  Butler  Min.  Co.,  9  Kulp.,  291. 

4.  Electric  City  Land  &  Iron  Co.  vs.  West  Bridge  Coal  Co.,  187 

Pa.,  500;  41  Atl.,  438. 

5.  See,  Section  in  19  Infra,  Chapter  XIV. 

6.  Findlay  vs.  Carson,  97  la.,  537;  66  N.  W.,  759. 


Implied  Covenant.  169 

purchased  by  the  lessors,  are  personal  to  the  lessors  and 
do  not  bind  the  grantee  of  the  lessors  to  perform  the 
covenants.1  So  where  the  owner  of  a  quarry  sold  the 
same,  and,  in  the  deed  covenanted  that  no  other  quarry 
would  be  opened  on  the  adjoining"  lands  by  the  grantor, 
or  permit  others  to  do  so,  and,  if  the  adjoining  lands 
were  sold,  the  same  restrictions  should  be  imposed  on 
the  purchasers,  the  covenant  was  void  as  to  the  pur- 
chasers.8 So  where  the  owner  of  land  leased  the  same 
to  a  third  person,  and  then  entered  into  an  agreement 
with  the  lessee,  that,  in  consideration  of  a  surrender  of 
the  lease,  the  lessor  would  give  to  the  lessees  a  certain 
portion  of  the  oil  produced;  and  the  lessee  surrendered 
the  lease  in  consideration  of  receiving  part  of  the  oil 
produced,  as  the  lessor  covenanted  to  give  the  lessee, 
and  the  lessor  then  conveyed  all  his  interest  in  the  prem- 
ises to  persons  who  had  notice  of  the  agreement  between 
the  lessor  and  lessee;  and  the  grantees  of  the  lessor 
refused  to  deliver  the  part  of  the  oil  agreed  to  be  deliv- 
ered by  the  lessor,  the  grantees  of  the  lessor  were  not 
bound  to  deliver  the  part  of  the  oil  agreed  to  be  deliv- 
ered, since  the  covenant  was  but  a  personal  agreement 
on  the  part  of  the  grantor  and  was  not  binding  on  the 
grantees.3 

SEC.  16.  No  IMPLIED  COVENANT  THAT  OIL  OR  GAS 
EXIST  ON  THE  LAND — No  IMPLIED  COVENANTS  BY  THE 
USE  OF  THE  WORDS  GRANT,  BARGAIN  AND  SELL  IN  A 
LEASE — THERE  is  AN  IMPLIED  COVENANT  IN  A  LEASE 
TO  SINK  WELLS  SUFFICIENT  TO  DEVELOP  THE  LAND, 
BUT  NOT  IF  EXPRESS  COVENANTS  ARE  INSERTED  IN  THE 
LEASE — WHEN  LESSOR  MAY  PROCEED  TO  DRILL. — The 
grant  of  a  right  to  drill  for  oil  and  gas,  on  the  prem- 
ises of  the  grantor,  does  not  have  the  effect  of  an  agree- 
ment or  a  covenant  on  the  part  of  the  grantor  with  the 
grantee,  that  oil  or  gas  exists  on  the  premises,  or  that 

1.  Etowah  Min.  Co.  vs.  Welles  Valley  Min.  &  W.  Co.,  121  Ala., 

672;  25  So.,  720;  Hansen  vs.  Meyer,  81  111.,  325. 

2.  Norcross  vs.  James,  140  Mass.,  188. 

3.  Newberry  Petroleum  Co.  vs.  Weare,  44  Ohio  St.,  604. 


170  Acceptance  of  Lease. 

any  oil  or  gas  can  be  found  on  the  premises  in  paying- 
quantities.  *  So  where  a  grant  of  land  is  only  for  a  term 
of  years,  with  the  privilege  of  taking  oil  and  gas  from 
the  premises  during  the  existence  of  the  term,  the  words 
grant,  bargain  and  sell  will  not  create  an  implied  cove- 
nant of  quiet  enjoyment  as  such  a  covenant  applies  only 
when  the  deed  or  other  instrument  of  conveyance  creates 
an  absolute  estate  in  fee  simple.8  There  is  an  implied 
covenant  on  the  part  of  the  lessee  in  an  oil  and  gas  lease 
that  lessee  will  prosecute  the  work,  in  the  development 
of  the  land,  for  the  production  of  oil  or  gas  when  the 
lease  reserves  to  the  lessor  a  part  of  the  oil  and  gas  pro- 
duced; and  that  such  lessee  will  bore  a  sufficient  number 
of  wells  to  develop  the  land,  and  to  protect  the  lands 
from  being  drained  of  the  oil  and  gas  through  wells  on 
adjoining  lands,  and  this  implied  condition  or  covenant 
in  the  lease  will  be  enforced  in  a  court  of  equity  so  as  to 
compel  a  performance,  or  the  lease  will  be  canceled.8 
But  where  the  lease  provides  other  grounds  of  forfeiture 
the  lessor's  only  remedy  is  an  action  for  damages;4  or 
the  lessor  may  proceed  to  drill  on  his  own  account,  if  the 
lessee  does  not  prosecute  the  work  with  due  diligence 
and  in  good  faith  and  a  court  of  equity  will  not  interfere 
with  the  lessor.8 

SEC.  17.  ACCEPTANCE  OP  A  LEASE  BINDS  BOTH 
PARTIES  THOUGH  SIGNED  ONLY  BY  LESSOR— BINDS  AS- 
SIGNEE.— The  execution  of  a  lease  by  the  lessor  without 
the  lessee  joining  is  binding  on  the  lessee  and  is  as 
effective  as  if  the  lessee  had  signed  it,  when  the  lessee 
accepts  the  lease.6  The  acceptance  of  the  lease  and  the 

1.  Kokomo  Nat.  Gas.  Co.  vs.  Albrect,  18  Ind.  App.,   157;  47 

N.  E.,  682. 

2.  Chambers  vs.  Smith,  183  Pa.,  122;  38  Atl.,  522. 

3.  Kleppner  vs.  Lemon,  176  Pa.,  502;  35  Atl.,  109. 

4.  Harris  vs.  Ohio  Oil  Co.,  57  Ohio  St.,  118;  48  N.  E.,  502;  Mc- 

Knight  vs.  Kreutz,  51  Pa.  St.,  232;  Paschall  vs.  Passmore, 
15  Pa.,  295. 

5.  Ohio  Oil  Co.  vs.  Kelley,  9  Ohio  C.  C.,  511. 

6.  Jennings  vs.  McComb,  112  P.,  518;  Hickey  vs.  Lake  Shore  & 

S.  M.  Ry.,  51  Ohio  St.,  40. 


Estoppel  to  Deny  Execution.  171 

enjoyment  of  the  estate  is  with  the  express  conditions 
contained  in  the  lease  and  has  the  same  force  and  effect 
as  if  duly  signed  by  both  parties;1  and  the  acceptance 
of  the  lease  by  the  lessee  and  an  assignment  thereof  will 
bind  the  assignee  to  the  performance  of  the  covenants 
and  conditions,  the  same  as  they  were  binding  on  the 
lessee,2  and  where  the  lease  gives  the  lessee  the  exclusive" 
right  to  operate  for  all  the  oil  and  gas  in  the  land  leased, 
the  lease  is  binding  on  the  lessee  when  the  same  is 
accepted  and  recorded,  though  not  signed  by  the  lessee. 8 

SEC.  18.  ESTOPPEL  TO  DENY  EXECUTION — STATE- 
MENTS OF  AN  ALLEGED  AGENT  WILL  NOT  ESTABLISH 
A  LEASE,  NOR  THE  PRINTED  FORM  IN  THE  RECORDER'S 
OFFICE; — A  lease  will  be  deemed  to  be  properly  exe- 
cuted and  accepted  when  the  lessee  enters  into  posses- 
sion and  bores  for  and  produces  gas,  and  settled  with 
the  lessor  for  the  gas  thus  obtained,  and  refers  to  the 
leased  premises  as  his,  and  the  lessee  will  be  estopped 
after  doing  these  acts  from  setting  up  that  the  lease  was 
not  obtained  under  the  authority  of  the  lessee;4  and  a 
lessee  who  is  claimed  to  have  an  interest  in  a  lease  with 
another,  will  be  deemed  to  have  ratified  the  acts  of 
another,  in  signing  the  lease  for  the  benefit  of  both, 
where  the  facts  show  that  the  lessee  knew  that  his 
co-lessee  signed  the  lease  at  the  time  of  its  execution, 
and  that  such  lessee  some  time  thereafter  approved  of 
what  was  done  by  the  lessee. 6  But  a  lease  which  will 
bind  another  cannot  be  established  by  the  statements  of 
an  alleged  agent  of  the  lessee  at  the  time  the  lease  was 
made,  that  the  lease  was  made  in  behalf  of  such  other 
person,  but  the  statements  may  be  received  in  evidence 

1.  Georgia  Railroad  vs.  Reeves,  64  Ga.,  492;  Burbank  vs.  Pills- 

bury,  48  N.  H.,  475;  Finley  vs.  Simpson,  22  N.  J.  L.,  311; 
Spaulding  vs.  Hallenbeck,  35  N.  Y.,  204. 

2.  Maynard  vs.  Moore,  76  N.  C.,  158. 

3.  Indianapolis  Nat.  Gas  Co.  vs.  Kibbey,  135  Ind.,  357;  35  N.  E., 

392. 

4.  Ahrns  vs.  Chartiers  Valley  Gas  Co.,  188  Pa.,  249;  41  Atl.,  739. 

5.  Rice  vs.  Ege  (C.  C.  N.  D.  N.  Y.),  42  Fed.  R.,  661. 


172  Description  of  Land. 

to  contradict  the  testimony  of  the  alleged  agent  where 
such  agent  denies  that  such  statements  were  made;1  nor 
can  a  printed  form  of  a  lease  which  is  generally  used  by 
the  lessee  and  which  was  printed  in  a  book  used  in  the 
recorder's  office,  at  the  request  of  the  lessee,  be  put  in 
evidence  to  prove  the  contents  of  the  lease,  where  the 
lessee  denies  the  execution  of  the  alleged  lease.8 

SEC.  19.  DESCRIPTION  OF  LAND — TRACTS  SPECIFIED 
TO  BE  OPERATED  UPON. — Though  a  lease  is  not  void 
where  a  large  tract  of  land  is  leased  and  only  a  particu- 
lar tract  is  to  be  operated  upon  and  such  tracts  are  to 
be  designated  by  the  lessor;3  yet  if  the  lease  undertakes 
to  specify  the  tracts  out  of  a  larger  tract  to  be  operated 
upon,  and  the  description  is  void  for  uncertainty,  the 
lease  will  also  be  void  and  cannot  be  enforced  by  either 
party. 4  So  where  a  lease  contains  a  definite  description 
of  the  land,  parol  evidence  is  not  admissible  to  change 
the  description  and  that  the  lease  was  intended  to  cover 
other  lands.5 

SEC.  20.  EVICTION  OF  LESSEE — MEASURE  OF  DAM- 
AGES— INJUNCTION  TO  PREVENT  OPERATION  ON  LAND 
WHERE  LESSEE  HOLDS  LEASE  TO  THE  WHOLE  LAND,  BUT 
OPERATIONS  ARE  CONFINED  TO  PARTICULAR  TRACTS  OR 
CITES — CONSTRUCTIVE  EVICTION — NOTICE  OF  LEASE  BY 
PURCHASER.  — Where  the  lease  gives  the  lessor  the  right 
to  occupy  the  premises  for  the  purpose  the  premises 
were  generally  used,  and  the  lessee  acquires  only  such 
rights  in  the  premises  as  are  necessary  for  the  produc- 
tion of  oil  and  gas  found  on  the  premises,  the  erection 
of  a  building  on  the  premises  by  the  lessor  after  the 
lessee  designated  the  place  where  the  well  would  be  put 
down,  will  not  amount  to  an  eviction  of  the  lessee, 

1.  Morris  vs.  Guffey,  188  Pa.,  534;  41  Atl.,  731. 

2.  Morris  vs.  Guffey,  188  Pa.,  534;  41  Atl.,  731. 

3.  Indianapolis  Nat.  Gas.  Co.  vs.  Spaugh,  17  Ind.  App.,  683;  46 

N.  E.,691. 

4.  Diamond  Plate  Glass  Co.  vs.  Tennell,  22  Ind.  App.,  132;  52 

N.  E.,  168. 

5.  Duffield  vs.  Hue,  129  Pa.,  94;  18  Atl.,  566. 


Eviction  of  Lessee.  173 

when  the  building1  will  not  hinder  the  lessee  in  operating 
for  oil  and  gas;1  but  when  the  lessee  has  the  exclusive 
right  to  drill  for  oil  and  gas  in  certain  lands,  and  the 
lessee's  rights  are  interfered  with,  the  lessee  has  a  right 
to  bring  an  action  in  tort  for  the  interference  with  his 
rights,  though  no  possessory  action  could  be  maintained, 
because  the  lease  did  not  provide  for  the  lessee  to  hold 
possession  of  the  land  demised. 2  So  where  other  wells  are 
sunk  on  premises  on  which  the  lessee  had  the  exclusive 
right  to  sink  wells,  the  measure  of  damages  is  to  be 
ascertained  by  finding  the  value  of  the  premises  free 
from  the  wells  put  down  without  right,  and  the  value  to 
the  lessee  with  these  wells  on  the  premises  without 
right,  and  the  difference  between  the  two  is  the  measure 
of  damages.3  When  a  lease  is  made  of  a  large  tract  of 
land,  but  the  lessee's  operations  on  the  land  are  confined 
to  particular  specified  sites,  the  lessee  cannot  occupy 
any  other  places  than  those  specified  in  the  lease  and 
cannot  maintain  ejectment  to  get  possession  of  the  land 
not  included  in  the  places  to  be  operated  upon,  though 
covered  by  the  lease;4  yet  the  lessee  may  enjoin  the 
lessor  from  sinking  wells  on  the  lands  covered  by  the 
lease,  as  the  lessee  acquires  title  to  all  the  oil  and  gas 
in  the  whole  tract  leased,  and  only  the  lessee's  right  to 
operate  at  particular  places  is  restricted.5  Where  the 
premises  are  leased  for  the  production  of  oil  and  gas 
and  the  lessor  conveys  the  premises  to  a  third  person 
and  the  deed  of  conveyance  is  not  made  subject  to  the 
oil  and  gas  lease,  the  lessee  is  constructively  evicted 
from  the  premises;6  but  where  the  purchaser  had  notice 
of  the  sale  of  the  mineral  rights  the  lessee's  rights  are 
not  lost  and  it  is  not  a  breach  of  a  covenant  of  warranty.  7 

1.  Matthews  vs.  Peoples  Nat.  Gas  Co.,  179  Pa.,  165;  36  Atl.,  216. 

2.  Duffield  vs.  Rosenzweig,  150  Pa.,  543;  24  Atl.,  705;  144  Pa., 

520;  23  Atl.,  4. 

3.  Duffield  vs.  Rosenzweig,  144  Pa.,  520;  23  Atl.,  4. 

4.  Duffield  vs.  Hue,  129  Pa.,  94;  18  Atl.,  566. 

5.  Duffield  vs.  Hue,  136  Pa.,  602;  20  Atl.,  526. 

6.  Matthews  vs.  Peoples  Nat.  Gas  Co.,  179  Pa.,  165;  36  Atl.,  216. 

7.  Sanders  vs.  Rowe,  20  Ky.  L.  R.,  1082;  48  S.  W.,  1083. 


174  Merger. 

SEC.  21.  MERGER. — Where  there  is  a  contract  made 
by  the  owner  of  gas  lands  to  sell  the  same,  and  such  an 
owner  afterwards  sells  the  lands  and  conveys  the  same 
by  deed  and  makes  no  reservation  of  the  rights  provided 
for  in  the  contract,  the  rights  agreed  upon  in  the  con- 
tract are  merged  in  the  deed.1  So  where  a  number  of 
persons  hold  oil  and  gas  lands  as  co-lessees,  and  one  of 
the  co-lessees  acquires  the  lands  in  fee,  the  lessee  who 
acquires  the  lands  in  fee  becomes  the  absolute  owner  of 
the  royalty  due  from  the  other  tenants  in  proportion  of 
the  shares  held  by  them  bear  to  that  of  the  lessee  who 
becomes  owner,  and  the  lessee's  interest  which  merged 
in  the  fee.2  So  where  two  persons  make  a  joint  lease  of 
two  separate  tracts  of  land  and  the  rent  was  to  be  paid 
to  them  jointly,  and  the  lessee  acquires  the  interest  of 
one  of  the  lessors,  the  lessee  is  released  from  the  pay- 
ment of  rent  to  the  extent  of  the  lessor's  interest.8 

SEC.  22.  AGREEMENTS  FOR  THE  LOCATION  AND 
DEVELOPMENT  OF  MINES  NOT  CONTRARY  TO  THE  STAT- 
UTE OF  FRAUD— PAROL  CONTRACT  NOT  TO  SINK  WELLS 
NEAR  BOUNDARIES  NOT  WITHIN  THE  STATUTE,  OR  TO  PUT 
IN  A  WELL  AND  SHARE  IN  THE  PRODUCT,  OR  A  RELEASE 
FROM  THE  PAYMENT  OF  ROYALTIES. — When  a  mine  is 
located  by  one  person  under  a  parol  agreement  with 
another  to  share  in  the  expenses  in  the  location  and 
development  of  the  mine,  such  an  agreement  is  not  con- 
trary to  the  statute  of  frauds;4  nor  is  an  agreement 
between  adjoining  leaseholders  that  each  shall  not  drill 
wells  within  two  hundred  feet  of  their  respective  line 
within  the  statute  of  frauds,  since  no  interest  is  con- 
veyed, but  simply  a  restriction  is  imposed  in  the  opera- 
tion for  oil  and  gas  under  each  other's  lease.5  Nor  is  an 

1.  Carroll  vs.  Providence  Natural  Gas  and  Fuel  Co.,  26  Canada 

S.  C.,  181;  Raymond  vs.  Johnson,  17  Wash.,  232;  49  Pac., 
492. 

2.  Northwestern  Nat.  Gas  Co.  vs.  Davis;  9  Ohio  C.  C.,  551. 

3.  Higgins  vs.  California  Petroleum  and  Asphalt  Co.,  109  Cal., 

304;  41  Pac.,  1087. 

4.  Moritz  vs.  Lovelle,  77  Cal.,  10;  18  Pa.,  803,  9  Ohio,  C.C.,  551. 

5.  Ware  vs.  Longmade,  9  Ohio  C.  C.,  85. 


Boundary  Lines.  175 

agreement  between  the  lessee  of  lands  for  oil  and  a  per- 
son who  agrees  to  put  a  well  down  on  the  premises  and 
to  have  an  interest  in  the  oil  produced  within  the  statute 
of  frauds.  *  So  when  the  lessor  reserves  a  royalty  under 
a  gas  lease,  and  the  lease  is  to  run  as  long  as  oil  and  gas 
is  produced,  the  lessee  may  be  released  from  the  pay- 
ment of  royalty  by  a  parol  agreement  between  the  par- 
ties. 2 

SEC.  23.  BOUNDARY  LINES— STATE  MAY  PROHIBIT 
MINING  UP  TO  THE  BOUNDARY  LINES — AGREEMENT  NOT 
TO  SINK  WELLS  UP  TO  THE  BOUNDARY  LINES  VALID — 
PARTIES  TO  A  SUIT  TO  ADJUST  BOUNDARY  LINES. — A 
law  which  prohibits  the  owners  of  adjoining  lands  from 
taking  the  minerals  therefrom  within  a  certain  distance 
from  the  boundary  lines  is  constitutional  and  imposes 
only  a  restriction  on  the  land  owners  for  the  common 
benefit  of  all. 8  So  also  adjoining  owners  may  agree  that 
neither  will  bore  for  oil  or  gas  within  a  certain  distance 
from  the  lines  bounding  their  lands,  and  the  agree- 
ment will  be  upheld  without  any  consideration  than  that 
which  will  accrue  from  the  protection  of  the  lands  of 
each  from  operations  up  to  the  boundary  lines;4  and  an 
injunction  will  lie  to  protect  one  from  a  violation  of  the 
agreement  by  the  other. 8  When  the  lessee  of  one  tract 
of  land  which  seeks  to  enjoin  the  lessees  of  another  tract 
of  land  adjoining  from  drilling  a  well  on  the  ground  that 
it  is  on  the  lands  leased  by  the  lessee  who  brings  the 
suit,  the  owner  of  the  fee  of  both  tracts  as  well  as  all 
parties  who  have  an  interest  in  the  oil  or  gas  produced 
from  the  wells  being  drilled  are  necessary  parties  to  the 
suit.6 

1.  Haight  vs.  Conners,  —  Pa.,  — ;  24  Atl.,  302. 

2.  Crawford  vs.  Bellvere  &  G.  Natural  Gas  Co.,  183  Pa.,  227;  38 

Atl.,  595;  Nilson  vs.  Goldstein,  152  Pa.,  493;  25  Atl.,  493. 

3.  Maple  vs.  John,  42  W.  Va.,  30;  24  S.  E.,  608;  32  L.  R.  A.,  800. 

4.  Ware  vs.  Longmade,  9  Ohio  C.  C.,  85. 

5.  Ware  vs.  Longmade,  9  Ohio  C.  C.f  85. 

6.  Steelsmith  vs.  Fisher  Oil  Co.,  —  W.  Va.,  — ;  35  S.  E.,  15 

Moore  vs.  Jennings,  —  W.  Va.,  — ;  34  S.  E.,  793. 


176  Oil  and  Gas  Lease  Chattels  Real. 

SEC.  24.  LEASE  OF  LANDS  FOR  THE  PRODUCTION 
OF  OIL  OR  GAS  is  A  CHATTEL  INTEREST,  LESSEE  is 
BAILEE  OF  THE  LAND  FOR  OWNER,  THE  LESSEE'S  INTER- 
EST MAY  BE  SOLD  UNDER  AN  EXECUTION,  SALE  OF  A 
PRODUCTIVE  WELL,  TOOLS  AND  APPLIANCES,  BY  THE 
OWNER  OF  THE  LAND  MAKES  THEM  PERSONAL  PROP- 
ERTY— LESSEE'S  INTEREST  GOES  TO  PERSONAL  REPRE- 
SENTATIVE ON  His  DEATH. — The  acquisition  by  the 
lessee  of  the  exclusive  right  to  prospect  or  produce  oil 
and  gas,  on  the  lands  of  another  for  a  certain  period,  or 
as  long1  as  oil  or  gas  may  be  found,  is  a  chattel  inter- 
est;1 and  it  is  a  rule  very  generally  recognized  that  a 
lease  of  land  is  not  a  conveyance  of  the  land,  but  a  right 
to  occupy  the  land  as  bailee  of  the  owner;2  but  the 
interest  which  a  lessee  acquires  in  an  oil  and  gas  land 
under  a  lease  for  their  production  may  be  sold  on  execu- 
tion.3 The  purchaser  at  a  sale  under  execution  is 
regarded  as  an  assignee  of  the  chattel.4  So,  on  the  exe- 
cution of  a  mortgage  on  property,  the  mortgage  must 
comply  with  the  statute  governing  chattel  mortgages.5 
And  where  the  owners  of  the  fee  sold  a  productive  well 
on  the  premises,  and  all  the  machinery  and  tools  and 
appliances  for  the  production  of  oil,  and  the  payments 
were  to  fall  due  in  the  future,  and  the  agreement  pro- 
vided that  if  the  payments  were  not  made,  when  due, 
the  product  of  the  well  should  be  delivered  to  their 
credit,  in  their  names,  the  oil  well  and  all  the  machinery, 
tools  and  appliances  for  the  production  of  oil  will  be 
regarded  as  personal  property.6  As  a  general  rule, 
leases  for  a  term  of  years  passes  to  the  administrator  at 

1.  Brown  vs.  Beecher,  120  Pa.,  590;  15  Atl.,  608;  McElwaines 

App.,  —  Pa.,  — ;  11  Atl.,  453;  Ohio  Oil  Co.  vs.  Kelley,  9 
Ohio  C.  C.,  511. 

2.  Perkins  vs.  Morse,  78  Me.,  17. 

3.  Acklin  vs.  Waltermen,  19  Ohio  C.  C.,  372. 

4.  Aderhold  vs.  Oil  Supply  Co.,  158  Pa.,  401;  28  Atl.,  22. 

5.  Devine  vs.  Taylor,  1  Ohio  Dec.  (N.  P.),  153. 

6.  Willets  vs.  Brown,  42  Hun.,  140. 


Appurtenances.  177 

the  death  of  the  lessee,1  but  there  are  some  exceptions 
to  this  general  rule.2 

SEC.  25.  WHAT  WILL  PASS  AS  APPURTENANCES.— 
Land  will  not  pass  as  appurtenant  to  land.8  "A  convey- 
ance of  one  acre  of  land  can  never  be  made,  by  legal 
construction,  to  carry  another  acre  by  way  of  incident^ 
or  appurtenant  to  the  first."4  Two  parcels  of  land  can- 
not be  appurtenant  to  each  other  and  the  conveyance  of 
one  tract  will  not  pass  the  other.5  So  where  the  deed 
conveying  land  provides  that  all  'appurtenances"  shall 
pass,  the  deed  will  not  pass  any  corporeal  rights  as 
appurtenances,  but  only  incorporeal  rights  and  privileges 
such  as  easements.6  But  whoever  grants  a  thing  is  sup- 
posed also  to  grant  that  without  which  the  grant  itself 
would  be  of  no  effect;  so  when  a  person  was  engaged  in 
the  production  of  oil,  and  the  buildings,  tanks,  derricks, 
pipes  and  all  other  things  usually  connected  with  the 
production  of  oil,  and  other  necessary  appliances  for  the 
transportation  off  the  premises  were  conveyed  by  a  deed 
of  grant,  bargain  and  sale,  all  the  ground  which  is  neces- 
sary for  the  location  of  buildings,  and  derricks,  etc.,  and 
ingress  and  egress  will  pass,  as  incident  to  the  grant, 
because  the  ground  is  necessary  to  the  enjoyment  of  the 
grant.7  So  in  a  lease  or  a  reservation  oil  or  gas  or  other 
minerals,  all  ground  necessary  for  their  production  and 
storage  and  a  way  to  remove  them  from  the  premises 
pass,  as  appurtenant  to  the  grant,  without  any  specific 
mention  of  these  rights;8  and  also  where  a  particular 
stratum  of  minerals  is  conveyed  and  another  stratum  lies 

1.  Becker  vs.  Walworth,  45  Ohio  St.,  169;  12  N.  E.,  1;  Campbell 

vs.  Hunt,  104  Ind.,  210;  Dean  vs.  Hutehinson,  42  N.  J. 
Eq.,372;  Thornton  vs.  Mehring,  117  111.,  55;  2B1.,143;  1 
Williams  on  Ex.,  Page  425. 

2.  See  Chapter  XIV. 

3.  Trustees  of  Schools  vs.  Schroll,  120  111.,  509;  12  N.  E.,  243. 

4.  Child  vs.  Starr,  4  Hill.,  369. 

5.  Humphreys  vs.  McKissock,  140  U.  S.,  304. 

6.  Hofers  Appeal,  116  Pa.,  360;  9  Atl.,  441. 

7.  Dietz  vs.  Mission  Transfer  Co.,  —  Cal.,  — ;  30  P.,  380. 

8.  See  7  supra. 


178  Conditional  Titles. 

beneath  the  one  conveyed,  the  grantor  or  his  assignees 
has  a  way  of  necessity  through  the  first  stratum  con- 
veyed. * 

SEC.  26.  CONDITIONAL  TITLES  TO  MINING  PROP- 
ERTY— JUDICIAL  NOTICE  OF  THE  NATURE  OF  THE  PROP- 
ERTY— TITLE  FAILS  IF  CONDITIONS  ARE  NOT  PERFORM- 
ED— GRANTOR  OR  HEIRS  ONLY  HAVE  A  RIGHT  TO  ENTER 
WHEN  THE  WHOLE  TERM  HAS  BEEN  ASSIGNED— WHEN 
A  RIGHT  DECLARES  A  FORFEITURE  EXISTS. — When  the 
contract  between  the  parties  relates  to  oil  and  gas  or 
other  minerals,  the  courts  will  take  judicial  notice  of  the 
peculiarities  of  the  property  and  the  mode  and  manner 
of  their  production  and  the  unstability  of  the  values  of 
the  property.8  So  when  the  grantee's  title  depends 
upon  the  condition  that  the  grantee  will  prosecute  the 
work,  on  the  lands  acquired,  and  pay  the  grantor  a  cer- 
tain sum  for  all  the  ores  removed,  and  the  grantee  can 
abandon  the  lands  and  remove  all  his  property  there- 
from, the  grantee's  title  is  at  an  end  when  the  mines  are 
no  longer  operated. 3  So  when  the  deed  provided  that  the 
grantee  would  prosecute  a  search  for  the  minerals  under 
a  deed  conveying  the  mineral  rights,  and  that  in  case  of 
sale  of  the  land,  by  the  grantee,  which  the  grantee  had 
a  right  to  do,  under  the  deed,  the  grantee  would  pay  the 
grantor  a  certain  portion  of  the  proceeds,  the  provisions 
of  the  deed  are  condition  subsequent  attached  to  the 
grant,  and  the  failure  of  the  grantee  to  perform  these 
conditions  within  a  reasonable  time  will  defeat  the 
grant.4  So  a  forfeiture  will  take  place  for  not  perform- 
ing the  conditions  implied  by  law. 5  But  a  right  to  declare 

1.  Charties  Black  Coal  Co.  vs.  Mellon,  151  Pa.,  286. 

2.  Ohio  Oil  Co.  vs.  Kelley,  9  Ohio  C.  C.,  511;  Twin  Lick  Oil  Co. 

vs.  Marbury,  91  U.  S.,  593;  Huggins  vs.  Daley,  99  Fed. 
Rep.,  606;  48  L.  R.  A.,  320;  Brown  vs.  Spillman,  155  U.  S., 
665;  Indianapolis  vs.  Consumers  Gas  Trust  Co.,  140  Ind., 
107;  39  N.  E.,  433;  27  L.  R.  A.,  514. 

3.  Paine  vs.  Griffiths,  56  U.  S.  App.,  38;  86  Fed.  Rep.,  452. 

4.  Hawkens  vs.  Pepper,  117  N.  C.,  407;  23  S.  E.,  434. 

5.  Conard  vs.  Maxwell,  89  N.  C.,  31;  Maxwell  vs.  Todd,  112  N.  C., 

677;  16  S.  E.,  926. 


V 


Who  May  Declare  a  Forfeiture.  179 

a  forfeiture  does  not  abide  in  a  lessee  after  assignment 
of  all  his  interest  in  a  lease  of  the  minerals,  because  he 
has  no  right  to  declare  a  forfeiture  for  failure  of  the 
assignee  to  perform  the  conditions  in  the  lease,  since,  by 
the  assignment  of  his  interest,  all  the  estate  title  and 
interest  passes  out  of  the  lessee  and  the  right  of  reentry 
does  not  exist  independent  of  the  estate  which  it  was~ 
intended  to  benefit;1  and  where  a  conditional  fee  is  con- 
veyed, no  person  can  take  advantage  of  a  breach  of  the 
condition  but  the  grantor  and  his  heirs;  and  an  assignee 
or  devisee  cannot  enter,  or  declare  a  forfeiture  of  a 
breach  of  the  condition.2  Nor  is  a  reservation  of  a  right 
by  the  lessee  to  purchase  a  gas  well  after  the  same  is 
drilled  by  the  assignees  an  interest  in  the  leasehold,  so 
that  the  person  who  performs  the  work  can  have  a  lien 
on  the  property  of  the  lessee  on  the  premises  for  the 
work  done  for  the  lessee.3  So  the  grantor  was  held  to 
have  no  interest  in  the  land  and  no  right  to  declare  a 
forfeiture  under  a  condition  subsequent  in  a  deed  convey- 
ing the  land  in  fee,  where  part  of  the  consideration  to  be 
received  for  the  deed  was  a  certain  part  of  the  product 
of  oil  wells  to  be  put  down  on  the  premises  by  the 
grantee  and  the  grantee  failed  to  put  down  the  wells. 
The  title  of  the  grantee  remains  unaffected  by  failure  of 
the  grantee  to  pay  the  consideration  as  agreed  and  the 
remedy  of  the  grantor  is  an  action  to  recover  the  roy- 
alty;4 and  where  the  lessee  fails  to  fully  develop  the 
lands  by  a  sufficient  number  of  wells,  so  as  to  prevent 
the  land  from  being  drained  of  the  oil  or  gas  by  wells  on 
other  lands,  the  lessor's  remedy  is  an  action  of  law  for 
damages,  though  if  the  lessee  was  insolvent  the  lessee 
could  resort  to  forfeiture. 6 

1.  Ohio  Iron  Co.  vs.  Auburn  Iron  Co.,  64  Minn.,  404;  67  N.  W., 

221. 

2.  Upington  vs.  Corrigan,  151  N.  Y.,  143;  45  N.  E.,  359;  Fowler 

vs.  Forester,  8  East.,  566. 

3.  Wiles  vs.  Peoples  Gas  Co.,  7  Pa.  Super.  Ct.,  562. 

4.  Ammons  vs.  South  Penn.  Oil  Co.,  —  W.  Va.,  — ;  35  S.  E.f 

1004. 

5.  Harness  vs.  Eastern  Oil  Co.,  —  W.  Va.,  — ;  38  S.  E.,  662. 


180  Joint  Lease  of  Separate  Tracts. 

SEC.  27.  JOINT  LEASES  MADE  OP  SEPARATE  TRACTS 
OF  LAND. — Where  two  lessors  owned  two  separate  tracts 
of  land  adjoining-  each  other  made  a  joint  lease  of  the 
lands  for  the  purpose  of  mining  bituminous  rock  and 
liquid  asphaltum,  and  the  lessee  was  to  pay  the  lessors 
fifty  cents  per  ton  for  all  the  bituminous  rock  and  liquid 
asphaltum  which  may  be  mined,  taken  or  removed  at  the 
first  of  each  month  for  the  month  previous,  and  some 
time  after  the  execution  of  the  lease,  and  when  opera- 
tions on  the  premises  had  begun,  the  lessee  acquired  the 
rights  of  one  of  the  joint  lessors  and  continued  to  ope- 
rate and  pay  the  other  lessor  one-half  of  the  rent  stipu- 
lated to  be  paid  for  a  few  months,  and  then  ceased  the 
payment  of  the  stipulated  one-half  of  the  royalty  be- 
cause no  operations  had  been  commenced  on  the  lands 
of  the  lessor,  and  that  the  interest  of  the  other  lessor 
had  been  acquired  and  no  rent  was  consequently  pay- 
able, the  lessee  was  held  bound  to  pay  one-half  the  rent 
to  the  lessor.  The  court  said  that  the  joint  execution  of 
a  lease  was  peculiar,  and  no  case  of  a  like  character  was 
called  to  the  attention  of  the  court,  but  that  the  rules 
applicable  to  the  execution  of  a  lease  of  lands  owned  by 
tenants  in  common  applied,  and  that  being  true  the  lessor 
was  entitled  to  his  portion  of  the  royalty  although  the 
lessee  acquired  the  interest  of  the  other  lessor,  and  that 
it  made  no  difference  that  up  to  the  time  the  action  was 
brought  all  the  operations  were  confined  to  the  land 
which  the  lessee  had  acquired  the  absolute  title.1 

The  following  lease,  made  by  a  husband  and  wife  of 
separate  tracts  of  land  owned  by  each,  was  construed  to 
be  a  joint  lease,  to- wit: 

"In  consideration  of  the  sum  of  twelve  hundred  and 
fifty  dollars,  the  receipt  of  which  is  hereby  acknowl- 
edged, Thomas  B.  Harness  and  Anna  K.  Harness,  his 
wife,  of  Pleasants  county,  West  Virginia,  first  parties, 
hereby  grant  unto  M.  Pinnegan,  of  Pittsburg,  second 
party,  his  heirs  and  assigns,  all  the  oil  and  gas  in  and 

1.  Higgins  vs.  California  Petroleum  &  Asphalt  Co.,  109  Cal., 
304;  41  P.,  1087. 


Joint  Lease  of  Separate  Tracts.  181 

under  the  following"  described  premises,  together  with 
the  right  to  enter  thereon  at  all  times  for  the  purpose 
of  drilling1  and  operating  for  oil,  gas  and  water,  and  to 
erect  and  maintain  all  buildings  and  structures  and  to 
lay  all  pipes  necessary  for  the  production  and  transpor- 
tation of  oil  and  gas  and  water  taken  from  said  premises, 
excepting1  and  reserving  to  the  first  parties  one-eighth 
part  of  all  the  oil  produced  and  saved  off  the  said  prem- 
ises, to  be  delivered  in  the  pipe  lines  with  which  the 
second  parties  may  connect  their  wells,  namely,  *  *  * 
all  that  certain  tract  of  land  situated  in  the  district  of 
Grant,  county  of  Pleasants,  state  of  West  Virginia,  the 
Riner  farm  of  152  acres,  belonging  to  T.  B.  Harness,  and 
the  Block  Lands  of  35^  acres,  belonging  to  Anna  K.  Har- 
ness, containing  187i  acres  more  or  less,  to  have  and  to 
hold  the  premises  upon  the  following  conditions:  Term 
of  lease  two  years,  and  as  much  longer  as  oil  and  gas  is 
found  in  paying  quantities.  If  gas  only  is  found  second 
party  agrees  to  pay  $250  each  year,  quarterly  in  advance, 
for  the  product  of  each  well  while  the  same  is  being  used 
off  the  premises.  Gas  free  for  dwelling  purposes.  No 
well  shall  be  drilled  nearer  than  two  rods  to  any  build- 
ing now  on  said  premises  without  the  consent  of  the  first 
party.  In  case  no  well  is  completed  in  sixty  days  from 
date  then  the  lease  is  to  be  null  and  void,  unless  the 
second  party  pays  the  first  party  $100  per  month  for  each 
month  thereafter  such  completion  is  delayed.  The  sec- 
ond party  shall  have  a  right  to  use  sufficient  gas,  oil  or 
water  to  run  all  necessary  machinery  for  the  operation 
of  said  wells  and  also  the  right  to  remove  all  its  prop- 
erty at  any  time;  and  all  the  conditions  between  the  par- 
ties hereto  shall  extend  to  their  heirs,  executors,  admin- 
istrators and  assigns  forever.  It  is  hereby  agreed  and 
understood  that  if  the  well  now  being  drilled  on  the  A — 
farm  should  produce  25  barrels  of  oil  per  day  for  30  days 
after  completion,  then  the  second  party  shall  pay  the 
first  party  $750  additional  bonus;  if  the  first  well  on  the 
premises  shall  produce  25  barrels  of  oil  per  day  for  30 
days  after  the  completion  the  second  party  shall  pay 


182  Indiana  Oil  and  Gas  Lease. 

$750,  making-  the  additional  contingent  bonus  not  to  ex- 
ceed fl,250.  And  it  is  further  agreed  that  the  second 
party,  his  heirs  and  assigns  shall  have  a  right  at  any 
time  to  surrender  up  this  lease  and  be  relieved  from  the 
payment  of  all  money  due  and  conditions  unfulfilled. 
Then  and  from  that  time  the  lease  shall  be  null  and  void 
and  no  longer  binding-  on  either  party,  and  all  payments 
which  shall  have  been  made  be  held  by  the  party  of  the 
first  part  for  the  full  stipulated  damages  for  the  non- 
fulfillment of  the  foregoing-  contract. 

"In  witness  whereof  the  parties  hereto  have  here- 
unto set  their  hands  and  seals  this  25th  day  of  January, 
A.  D.  1896.  THOMAS  B.  HARNESS,  (Seal.) 

ANNA  K.  HARNESS,         (Seal.) 
M.  FINNEGAN.  (Seal.)"1 

So  where  a  father  who  was  the  owner  of  the  land 
was  joined  by  his  son  in  the  execution  of  a  lease  for  the 
production  of  oil  and  gas  with  a  reservation  of  one-eighth 
of  the  royalty,  the  son  will  be  considered  as  one  of  the 
joint  lessors  of  the  land  if  such  was  the  intention  of  the 
parties.2 

SEC.  28.  INDIANA  LEASE — FORFEITURE  FOR  FAIL- 
URE TO  OPERATE. — "This  agreement  and  indenture  made 
and  entered  into  this  25th  day  of  April,  A.  D.  1888,  by 
and  between  John  M.  Mitchell  and  Judy  Mitchell,  parties 
of  the  first  part  and  as  lessors  herein,  and  John  B.  Crof- 
ton,  Samuel  M.  Mathers  and  W.  B.  Woodward,  parties  of 
the  second  part  and  lessees  herein,  witnesseth,  that  the 
said  parties  of  the  first  part  for  and  in  consideration  of 
$1.00  in  hand  paid,  and  the  agreements,  covenants,  rents 
and  royalties  hereinafter  mentioned  and  provided  for, 
do  by  these  presents  hereby  demise,  lease  and  let  unto 
the  said  parties  of  the  second  part  for  the  sole  purpose 
of  mining-  and  removing  coal,  stone,  g-as,  water,  oils,  min- 
erals and  metals  of  every  kind  there  under  the  following 
described  tract  of  land."  *  *  "The  term  of  the  lease  and  the 

1.  Harness  vs.  Eastern  Oil  Co.,  —  W.  Va.,  — ;  38  S.  E.,  662. 

2.  Swinf  vs.   McCalmont  Oil  Co.,   183  Pa.,  366;  184  Pa.,  16;  38 

Atl.,21. 


Construction.  183 

estate  herein  granted  shall  begin  on  the  25th  day  of  April, 
1888,  and  shall  continue  for  twenty  years;  provided  that 
if  said  enterprise  shall  be  abandoned  twelve  months  this 
lease  shall  become  null  and  void.  And  the  said  lessees 
further  covenant  and  agree  to  pay  to  the  said  lessors  one- 
tenth  part  of  the  net  profits  arising"  from  such  opera- 
tions. It  is  further  agreed  by  the  parties  hereto,  that 
the  lessors  aforesaid  shall  have  the  right  to  enter  upon 
said  premises  at  any  time  for  the  purpose  of  prospecting- 
and  selecting  a  location  for  opening1  mines  or  wells,  and 
for  that  purpose  shall  have  a  right  to  take  therefrom 
coal,  stone,  minerals,  gas,  water,  oils  or  metals  for  the 
purpose  of  testing-  the  same.  It  is  further  agreed,  that 
in  case  of  the  termination,  either  by  expiration  or  for- 
feiture, said  lessees  shall  have  a  right  to  remove  all 
building's,  machinery,  tracks,  fixtures  which  they  may 
have  put  upon  said  premises,  provided  that  they  shall 
first  pay  the  lessors  the  money  they  may  owe  to  the  said 
lessors  under  this  lease;  and  said  lessees  shall  not  be 
liable  for  any  damages  for  opening1  of  stone  quarries,  sink- 
ing- wells,  or  other  work  done  in  pursuance  of  this  lease; 
and  the  payment  of  the  lessors  of  the  said  one-tenth  part 
of  the  net  profits  arising-  from  the  operation  of  quarries 
and  wells  shall  be  in  full  of  all  demands  under  this 
lease."  The  lease  was  properly  signed,  acknowledged 
and  recorded.  Nothing  had  been  done  by  the  lessees  to 
carry  into  effect  the  provisions  of  the  lease,  and|at  the 
expiration  of  two  years  the  lessors  demanded  a  release 
so  that  the  apparent  incumbrance  may  be  removed,  but 
the  lessees  refused.  The  court  held  the  lease  to  be  null 
and  void  at  the  expiration  of  twelve  months  and  the  les- 
sees delay  could  not  be  excused  because  of  the  lack  of 
railroad  facilities.1  So  where  a  lessor  gave  the  lessee  a 
lease  "for  the  purpose  and  with  the  exclusive^right  of 
drilling  and  operating  for  petroleum  and  gas,"  *Jk  and 
the  lessee  was  to  have  and  to  hold  said  premises  for  and 
during  the  term  of  ninety  days  from  the  date  hereof  and 
as  much  longer  as  oil  and  gas  is  produced  or  found Jn 

1.  Woodward  vs.  Mitchell,  140  Ind.,  406;  39  N.  E.,  437. 


184  New  York  Oil  and  Gas  Lease. 

paying-  quanties, "  and  the  lessor  was  to  receive  one-eighth 
of  the  oil  and  and  a  cash  consideration  for  the  gas  pro- 
duced and  used,  and  the  parties  of  the  second  part  were 
to  complete  a  well  in  ninety  days  from  the  date  thereof," 
and  "in  case  of  failure  to  complete  such  well  to  pay  the 
first  parties  for  such  delay  a  yearly  rental  of  $250  from 
the  time  of  completing  such  well,"  the  court  construed 
the  instrument  to  be  a  lease  creating  a  tenancy  from 
year  to  year,  and  it  was  optional  with  the  lessor  to  de- 
clare a  forfeiture  or  not  where  the  lease  provided  that  it 
would  become  null  and  void  for  failure  to  drill  or  pay 
the  rental.1 

SEC.  29.  NEW  YORK  LEASE — FORFEITURES. — The 
leases  which  have  come  before  the  courts  of  New  York 
are  about  the  same  as  the  Indiana  form,  excepting 
as  to  the  mode  of  operations  and  the  payment  of  rents. 
A  late  case  comes  before  the  court  on  the  question  of 
forfeiture.  The  lease  was  for  twelve  years  and  as  long 
"as  oil  is  found  in  paying  quantities,"  and  further  pro- 
vided: "That  operations  should  begin  within  six  months, 
and  thereafter  operations  should  be  prosecuted  with  due 
diligence,  and,  in  case  no  such  operations  were  begun, 
the  lease  was  to  be  null  and  void,"  and  the  lease  gave 
the  lessees  "the  exclusive  right  to  dig,  bore  and  mine  for 
and  gather  all  the  oil  and  gases  in  and  upon  the  afore- 
said premises."  The  lease  gave  the  lessors  part  of  the 
product  as  a  royalty,  and  no  provisions  were  made  in 
case  of  delay.  The  lessees  put  down  a  well  in  time,  and 
the  well  produced  gas,  but  the  lessees  cased  the  well  and 
made  no  use  of  the  gas  and  removed  all  their  machinery 
from  the  premises,  and  the  lessors  made  a  second  lease 
to  other  parties  who  went  into  immediate  possession. 
The  second  lease  contained  a  provision:  "Subject  to  a 
lease  on  part  of  said  lands  in  case  the  same  is  not  now 
or  does  not  become  forfeited  or  cancelled."  The  court 
construed  the  words  "as  long  as  oil  is  found  in  paying 
quantities,"  contained  in  the  first  lease,  as  words  of  lim- 

1.  Evans  vs.  Consumers  Gas  Trust  Co.,  31  L.  R.  A.,  473. 


West  Virginia  Oil  and  Gas  Lease.  185 

itation,  which  fixed  the  duration  of  the  lease,  and,  as  the 
lessees  abandoned  the  land  after  testing1  it,  all  rights 
under  the  lease  were  at  an  end.  The  lease  was  con- 
strued to  give  the  lessees  no  other  right  or  estate  in  the 
land  than  to  possess  the  land  to  prospect  for  oil  and  g^as 
and  a  right  to  take  the  oil  and  g~as  found.1  A  sole  and 
exclusive  right  to  enter  upon  and  take  the  minerals  fronT 
the  land  does  not  give  the  lessee  an  estate,  but  an  incor- 
poreal hereditament, 2  and  this  rig"ht  is  forfeited  by  the 
execution  of  a  new  lease.3 

SEC.  30.  WEST  VIRGINIA  OIL  AND  GAS  LEASE — 
FORFEITURES. — "Oil  lease.  This  lease,  made  the  llth  day 
of  August,  A.  D.  1885,  by  and  between  William  P.  Core, 
of  Cass  Township,  of  the  County  of  Monongahela,  and 
the  State  of  West  Virginia,  of  the  first  part,  and  John 
Kennedy  and  J.  W.  Long-,  of  Green  County,  State  of 
Pennsylvania,  parties  of  the  second  part,  witnesseth: 
That  the  said  party  of  the  first  part,  in  consideration  of 
the  stipulation  and  rents  and  covenants  hereinafter  con- 
tained on  the  part  of  the  parties  of  the  second  part,  their 
executors,  administrators  and  assigns,  to  be  paid,  kept 
and  performed,  hath  granted,  demised  and  let  unto  the 
said  parties  of  the  second  part,  their  executors,  admin- 
istrators and  assigns,  for  the  sole  and  only  purpose  of 
developing,  drilling1  for  and  producing"  of  petroleum  or 
carbon  oil,  and  for  laying  of  pipes,  either  under  or  on 
top  of  the  surface,  for  transportation  of  the  products  of 
such  development  all  that  certain  tract  of  land  (descrip- 
tion follows),  to  have  and  to  hold  said  premises  for  the 
said  purpose  only,  unto  the  said  parties  of  the  second 
part,  their  executors,  administrators  and  assigns,  for 
during  and  for  the  full  term,  twenty  years  next  ensuing, 

1.  Eaton  vs.  Allegheny  Gas  Co.,  122  N.  Y.,  416;  25  N.  E.,  581; 

Reversing,  42  Hun.,  61. 

2.  Eaton  vs.  Allegheny  Gas  Co.,  122  N.  Y.,  416;  25  N.  E.,  981; 

Baker  vs.  Hart,  123  N.  Y.,  470;  25  N.  E.,  948;  12  L.  R.  A., 
60;  Shepherd  vs.  McCalmont  Oil  Co.,  38  Hun.,  37. 

3.  Allegheny  Oil  Co.  vs.  Bradford  Oil  Co.,  21  Hun.,  26;  86  N.  Y., 

638. 


186  Execution  of  Second  Lease. 

the  day  and  year  above  written.  Said  parties  of  the 
second  part  hereby  covenant,  in  consideration  of  the  said 
grant,  and  demise  to  deliver  to  the  said  party  of  the  first 
part,  his  heirs  and  assigns,  the  full  equal  one-ninth  (to 
be  paid  in  cash  of  all  oil),  part  of  petroleum  or  carbon 
oil  discovered  or  produced  on  the  premises  herein  leased 
as  produced  in  the  crude  state,  the  first  party  to  furnish 
tankage  for  the  same  until  a  pipe  line  is  provided.  The 
said  party  of  the  first  part  is  to  fully  use  and  enjoy  the 
said  premises  for  the  purpose  of  tillage,  except  as  such 
part  as  shall  be  necessary  for  said  development  pur- 
poses, and  a  right  of  way  over  and  across  said  premises 
to  the  place  or  places  of  operation.  The  said  party  of 
the  first  part  covenants  to  grant  to  the  said  parties  of 
the  second  part  the  right  to  remove  any  machinery  or 
fixtures  placed  on  said  premises  by  said  parties  of  the 
second  part.  The  said  parties  of  the  second  part  cove- 
nant to  commence  operations  for  said  purposes  within 
one  year  from  and  after  the  execution  of  the  lease  or  to 
thereafter  pay  the  party  of  the  first  part  $5.50  per  month 
until  the  work  is  commenced.  A  deposit  in  the  hands  of 
John  Kennedy  shall  be  good  and  sufficient  for  each  and 
every  month  till  work  is  commenced,  and  a  failure  on  the 
part  of  the  said  second  parties  to  comply  with  either  one 
or  the  other  of  the  foregoing  conditions  shall  work  an 
absolute  forfeiture  of  the  lease."  No  operations  were 
begun,  nor  was  the  rent  paid  as  provided  in  the  lease,  so 
the  lessor  executed  a  second  lease  to  other  parties.  The 
second  lease  was  for  both  oil  and  gas,  and  was  made 
March  7,  A.  D.  1888,  and  was  for  a  term  of  two  years  "or 
as  long  as  oil  and  gas  is  found  in  paying  quantities,"  and 
the  lease  covered  the  same  land,  excepting  ten  acres 
around  the  dwelling  house  of  the  lessor,  and  the  lessee 
was  to  give  the  lessor  one-eighth  of  all  the  oil  produced 
and  $500  per  annum  for  each  gas  well  used  off  the  prem- 
ises, and  the  lease  was  made  for  the  sole  and  only  pur- 
pose of  producing  oil  and  gas,  and  as  to  the  production 
of  oil  and  gas  the  lease  contained  the  following  pro- 
vision: "It  is  further  agreed  between  the  parties  to  this 


Entry  by  First  Lessee.  187 

agreement  this  lease  will  be  extended  by  the  first  party 
six  months  from  the  date  of  a  completion  of  a  well,  as 
recited  below,  by  the  second  party  paying-  $40.00  in  ad- 
vance, and  it  is  further  agreed,  at  the  end  of  one  year 
from  the  date  of  this  lease,  the  said  party  can  have  the 
lease  extended  one  year  longer  by  paying-  $130.00  in 
quarterly  payments,  and  that  the  lease  becomes  null  arixT 
void  unless  a  well  is  drilled  in  and  about  the  premises 
described.  The  party  of  the  second  part  agrees  to  com- 
plete one  well  within  six  months  from  the  date  hereof, 
and,  for  failure  to  complete  one  well  within  such  time, 
the  party  of  the  second  part  hereby  agrees  to  pay  to  the 
first  party  for  future  delay,  etc.  And  the  party  of  the 
first  part  hereby  agrees  to  accept  such  sum  as  full  con- 
sideration and  payment  for  delays  while  one  well  is  com 
pleted,  and  a  failure  to  complete  one  well,  or  to  make 
any  of  such  payments  within  such  time  and  place  as 
above  mentioned,  renders  this  lease  null  and  void,  and  to 
remain  without  any  force  and  effect  between  the  two 
parties." 

Before  the  expiration  of  the  term  of  two  years  in  the 
second  lease  an  assignee  of  the  first  lease  entered  into 
possession  of  the  land  with  the  consent  of  the  owner,  and 
bored  for  oil  and  produced  it  in  large  quantities,  and  in 
January,  1890,  before  the  end  of  the  term  of  two  years,  par- 
ties who  claimed  under  the  second  brought  suit  against 
the  assignee  of  the  first  lease  to  regain  possession  of  the 
premises,  and  the  suit  was  decided  in  June,  1890,  and  up 
to  that  time,  or  during  the  two  years,  no  oil  or  gas  was 
produced  under  the  second  lease.  The  second  lease  was 
held  to  have  expired  at  the  end  of  two  years  when  no 
oil  or  gas  was  produced  within  that  time.  The  fact  that 
oil  was  produced  by  the  first  lessee's  assignee  did  not 
keep  the  lease  in  force,  because  the  oil  was  not  produced 
by  anyone  acting  under  the  second  lease,  nor  was  the 
second  lease  kept  in  force  because  the  lessee  was  kept 
out  of  possession  by  the  first  lessee,  and  the  only  remedy 
the  second  lessee  had  was  an  action  for  damages.1  So 

1.  Thomas  vs.  Hukill,  34  W.  Va.,  385;  12  S.  E.,  522. 


188  Second  Lease  Subject  to  Former  Lease. 

where  a  second  lease  was  given  for  the  same  premises 
by  the  same  lessor,  but  the  second  lease  was  made  "sub- 
ject to  the  E.  M.  Hukell  lease,"  a  former  lease,  the  mak- 
ing1 of  the  second  lease  is  not  an  equivocal  declaration 
of  forfeiture,  although  grounds  for  a  forfeiture  exists  and 
the  first  lease  is  delivered  up  by  the  lessee  by  mistake  to 
be  canceled. *  The  clause  in  a  lease  "to  have  and  to  hold 
the  said  premises  unto  the  said  party  of  the  second  part 
during  and  until  the  full  term  of  two  years,  and  as  much 
longer  as  oil  or  gas  is  found  in  paying  quantities  thereon 
or  the  rental  thereon  paid, "  means  that  the  lease  is  at  an 
end  at  the  expiration  of  two  years,  where  no  oil  or  gas  is 
found;  and  the  words  "or  rental  thereon  paid"  applies 
to  another  part  of  the  lease,  which  provided  that  opera- 
tions must  be  commenced  and  one  well  bored  in  six  months 
and  for  a  failure  to  do  so  to  pay  a  certain  rent  men- 
tioned.2 So  where  a  lease  "granted,  demised  and  let 
unto  the  said  lessee  all  the  oil  and  gas  in  and  under"  the 
land  described,  and  the  lessee  was  to  have  and  to  hold 
the  said  premises  for  a  term  of  five  years  and  as  much 
longer  as  oil  or  gas  was  found  in  paying  quantities,  and 
the  lessor  was  to  receive  one-eighth  the  product  as  a 
royalty,  and  the  lease  contained  the  following  clause: 
"Provided,  however,  that  a  well  shall  be  commenced  on 
above  described  premises  within  thirty  days  and  com- 
pleted within  ninety  days  from  the  date  hereof,  and  in 
case  of  failure  to  commence  and  complete  said  well  as 
aforesaid,  the  lessee  shall  pay  to  the  lessor  a  forfeiture 
of  $50, "  and  the  lease  recited  a  consideration  of  $1.00  but 
it  was  never  paid.  The  consideration  for  such  a  lease 
is  the  prospective  royalties,  and  a  failure  to  commence 
operations  and  put  down  a  well  in  ninety  days  will  be  a 
ground  of  forfeiture  to  be  exercised  by  the  lessor  within 
the  five  years.3  Another  lease  with  provisions  like  the 
ones  given  above,  and  for  a  consideration  of  $1.00  and 

1.  Schaup  vs.  Hukill,  34  W.  Va.,  375;  12  S.  E.,  501. 

2.  Bettman  vs.  Harness, 42  W.  Va.,  433;  26  S.  E.,  271;  36  L.R.A., 

566. 

3.  Huggins  vs.  Daly,  99  Fed.  R.,  606;  48  L.  R.  A.,  320. 


Optional  Leases.  189 

for  a  term  of  five  years,  with  a  reservation  of  one-eighth 
of  the  oil  to  the  lessor  and  cash  payments  for  gas  wells, 
contained  a  provision  as  follows:  "In  case  no  well  shall 
be  completed  on  the  above  described  premises  within  one 
month  from  the  date  hereof  this  lease  shall  become  null 
and  void  and  without  any  futher  effect  whatever,  unless 
the  lessee  shall  pay  for  further  delay  at  the  rate  of  $5(T 
per  month  in  advance  thereafter  until  the  well  is  com- 
pleted." The  completion  of  a  non-productive  well  will 
not  save  the  lease  from  forfeiture  where  the  lessee  aban- 
dons the  premises. * 

The  following  clause  in  a  lease  was  construed  to  be 
a  mere  option  until  the  lessee  proceeded  to  carry  the 
lease  into  execution,  to- wit:  "The  parties  of  the  second 
part  agree  to  drill  one  test  well  on  the  above  described 
premises  within  six  months  from  the  execution  of  the 
lease,  or  in  lieu  thereof  to  pay  the  said  party  of  the  first 
part  one  dollar  per  acre  per  annum  until  such  well  is 
completed,  and  if  one  of  the  said  test  wells  is  not  com- 
pleted within  six  months  from  the  date  or  rentals  paid 
thereon  this  lease  is  null  and  void  and  not  further  bind- 
ing on  either  party.  And  it  is  further  agreed  that  the 
said  second  parties,  their  heirs  and  assigns  shall  have 
a  right  at  any  time  to  surrender  up  this  lease  and  be  re- 
leased from  all  moneys  due  and  conditions  unfulfilled; 
then  and  from  that  time  this  lease  and  agreement  shall 
be  null  and  void  and  no  longer  binding  on  either  party, 
and  the  payments  as  shall  have  been  made  held  by  the 
said  first  party  as  full  specified  damages  for  the  non- 
fulfillment of  the  foregoing  contract."  The  lessor  had 
a  right  to  terminate  the  lease  before  the  lessee  did  any- 
thing to  carry  it  into  execution,  and  the  execution  of  a 
new  lease  to  another  terminates  the  lease,2  or  the  death 
of  the  lessor  would  also  end  the  lease.3 

1.  Steelsmith  vs.   Gartlan,  45  W.   Va.,  27;   29  S.   E.,   978;  44 

L.  R.  A.,  107. 

2.  Eclipse  Oil    Co.  vs.  South  Penn.  Oil  Co.,  47  W.  Va.,  84;  34 

S.  E.,  923. 

3.  Trus.  vs.  Eclipse  Oil  Co.,  47  W.  Va.,  107;  34  S.  E.,  933. 


190  Ohio  Oil  and  Gas  Lease. 

A  lease  was  held  not  to  be  forfeited  under  the  follow- 
ing provisions:  "The  party  of  the  second  part  covenants 
to  commence  operations  for  a  test  well  within  one  year 
from  the  date  hereof  at  some  point  in  the  district  of 
Pawpaw,  etc.,  and  complete  the  same  in  eighteen  months 
from  said  commencement,  provided  that  unavoidable  de- 
lays on  account  of  mishaps  in  drilling  shall  cause  a  for- 
feiture of  the  lease,  and  if  for  any  cause  the  said  second 
party  fails  to  commence  and  complete  said  well  this  lease 
shall  be  forfeited  and  void;"  where  a  test  well  is  located 
by  surveying  and  leveling,  and  the  timbers,  which  are 
afterwards  used  in  the  construction  of  the  derrick  at  the 
location  selected,  are  cut  down  and  hewed  and  a  contract 
is  made  with  a  party  to  drill  a  well  and  the  machinery 
is  ordered  to  be  hauled  to  the  location,  but  neither  the 
timber  or  machinery  is  hauled  to  the  location  within  the 
the  year  because  of  the  impassable  condition  of  the  road.1 

SEC.  31.  OHIO  OIL  AND  GAS  LEASES— FORFEIT- 
URES.— "This  agreement  made  and  entered  into  by  and 
between  John  A.  Taylor,  of  Cass  township,  of  the  county 
of  Hancock  and  state  of  Ohio,  of  the  first  part,  and  William 
Duke,  Jr.,  of  Wells ville,  New  York,  of  the  second  part; 
that  the  said  party  of  the  first  part  for  the  consideration 
of  the  covenants  and  agreements  hereinafter  inserted, 
has  granted,  demised  and  let  unto  the  party  of  the  sec- 
ond part,  his  heirs  and  assigns,  for  the  purpose  and  ex- 
clusive right  of  drilling  and  operating  for  petroleum  and 
gas,  all  that  certain  tract,  etc.,  *  *  *  together  with  the 
right  of  using  sufficient  water,  excepting  from  the  wells 
now  located  except  by  consent  of  the  first  party,  the 
right  of  way  over  the  said  premises,  the  right  to  lay 
pipes  to  convey  oil  and  gas  and  the  right  to  remove  any 
machinery  and  fixtures  placed  on  said  premises  by  the 
second  party.  The  party  of  the  second  part,  his  heirs 
and  assigns  to  have  and  to  hold  the  said  premises  for 
and  during  a  term  of  five  years  from  the  date  hereof  and 
as  much  longer  as  oil  or  gas  is  found  or  produced  in  pay- 

1.  Fleming  Oil  &  Gas  Co.  vs.  South  Penn.  Oil  Co.,  37  W.  Va., 
645;  17  S.  E.,203. 


Implied  Covenants.  191 

ing-  quantities  thereon.  Consideration  of  the  said  grant 
and  demise  the  party  of  the  second  part  agrees  to  give 
or  pay  the  said  party  of  the  first  part  the  full  equal  of 
one-eighth  of  all  the  oil  produced  or  found  on  said  prem- 
ises and  to  deliver  the  same  free  of  expense  into  tanks 
or  pipe  lines  to  the  credit  of  the  first  party;  and  should 
g-as  be  found  in  sufficient  quantities  to  justify  the  party" 
of  the  second  part  in  marketing1  the  same,  the  considera- 
tion in  full  to  the  party  mentioned  of  the  petroleum  roy- 
alty shall  be  $100  per  annum  for  each  well  so  long  as  it 
shall  be  used  therefrom.  It  is  further  agreed  that  the 
party  of  the  first  part  shall  complete  a  well  on  the  above 
described  premises  within  nine  months  from  the  date 
hereof,  and  in  case  of  failure  to  complete  such  well  within 
such  time,  the  said  party  of  the  second  part  agrees  to 
pay  to  the  said  party  of  the  first  part  a  yearly  rental  of 
fifty  cents  per  acre  on  the  premises  herein  leased  from 
the  time  of  completing  the  well  as  above  specified  until 
such  well  is  completed.  The  said  yearly  rental  *  *  * 
shall  be  deposited  to  the  credit  in  the  First  National 
Bank  of  Findley,  Ohio,  or  paid  direct  to  the  first  party. 
A  failure  to  complete  such  well  or  make  said  deposits 
or  payments  as  above  specified  shall  render  this  lease 
null  and  void,  and  to  remain  without  any  effect  between 
the  parties." 

No  possession  of  the  premises  was  taken  by  the  les- 
see and  no  work  was  done  to  carry  into  effect  the  lease 
during  the  term  of  five  years.  The  lease  was  held  to  be 
terminated  after  the  expiration  of  five  years  as  long  as 
no  oil  or  g^as  was  produced  within  that  time,  and  any  ex- 
tension of  time  after  the  expiration  of  the  five  years  was 
in  legal  effect  the  execution  of  a  new  lease.1 

A  lease  in  the  above  terms  provided:  "The  second 
party  agrees  to  commence  and  complete  one  well  in  six 
months,"  and  the  lease  made  no  provisions  as  to  the  de- 
velopment of  the  lands  other  than  the  provision  above 
quoted,  but  the  court  held  that  there  was  an  implied 

1.  Northwestern  Ohio  Nat.  Gas  Co.  vs.  City  of  Tiffin,  59  Ohio, 
420;  54  N.  E.,  77. 


192  Forfeiture. 

covenant  in  the  lease  that  sufficient  wells  would  be  put 
down  to  develop  the  lands.  The  implied  covenant  was 
held  to  be  no  ground  for  a  forfeiture  of  the  lease  where 
the  lessee  failed  to  develop  the  land  with  a  sufficient 
number  of  wells,  and  the  only  remedy  of  the  lessor  was 
an  action  for  damages  against  the  lessee.1 

So  where  a  lease  was  made  which  recited  a  consid- 
eration of  one  dollar  and  the  operative  part  was  as  fol- 
lows: "Does  hereby  grant,  demise  and  let  unto  the  lessee, 
his  heirs  and  assigns,  all  the  oil  and  gas  in  and  under 
the  following  described  real  estate,  etc."  *  *  *  "To 
have  and  to  hold  the  same  unto  the  lessee,  his  heirs  and 
assigns,  for  the  term  of  two  years  from  the  date  hereof, 
and  as  long  as  oil  or  gas  is  found  in  paying  quantities, 
not  exceeding  in  the  whole  term  of  twenty-five  years 
from  the  date  hereof,  rendering  and  paying  unto  the 
lessor  one-eighth  of  the  oil  produced  and  saved  from  the 
premises,"  and  $150  per  annum  for  each  gas  well.  "In 
case  no  well  shall  be  drilled  on  said  premises  within  two 
years  from  the  date  hereof  this  lease  shall  become  null 
and  void,  unless  the  lessee  shall  pay  for  the  further  delay 
at  the  rate  of  one  dollar  per  acre  at  or  before  the  end  of 
each  year  thereafter." 

"It  is  agreed  that  the  lessee  shall  have  the  right,  at 
any  time,  to  surrender  the  lease  to  the  lessor  for  cancel- 
lation, after  which  all  payments  or  liabilities  to  accrue 
under  and  by  virtue  of  this  lease  shall  cease  and  deter- 
mine, and  the  lease  to  become  absolutely  null  and  void." 
The  lessee  did  nothing  toward  the  development  of  the 
land  during  the  term  of  two  years,  but  the  rent  was 
paid;  nor  was  there  any  clause  of  forfeiture  in  the  lease. 
The  lease  was  held  not  to  be  void  for  the  want  of  mutu- 
ality, but  that  the  one  dollar  consideration  not  only  sup- 
ported the  term  of  two  years,  but  also  the  remainder  of 
the  term,  and  the  lessee  was  entitled  to  hold  the  land 
after  the  expiration  of  the  two  years  upon  the  payment 
of  the  rent  stipulated.2 

1.  Harris  vs.  Ohio  Oil  Co.,  57  Ohio  St.,  118;  48  N.  E.,  502. 

2.  Allegheny  Oil  Co.  vs.  Snyder,  106  Fed.  R.,  764. 


Pennsylvania  Oil  Lease.  193 

So  where  a  lease  provided:  "A  failure  on  the  part 
of  the  second  party  to  complete  such  well  or  wells,  as 
above  specified,  or  instead  thereof  to  pay  the  rental,  as 
above  provided,  shall  render  this  lease  and  agreement 
null  and  void,  together  with  all  rights  and  claims,  and 
not  binding  on  either  party,  and  not  to  be  revived  with-_ 
out  the  consent  of  both  parties  hereto  in  writing.  The 
lease  was  held  to  be  void  only  at  the  option  of  the  lessor 
for  failure  to  put  down  wells  or  pay  the  rental. ' 

SEC.  32.  FORM  OP  LEASE  AS  USED  IN  PENNSYL- 
VANIA— FORFEITURES. — "Articles  of  agreement  between 
John  Rynd,  etc.,  party  of  the  first  part,  and  Jonathan 
Watson  and  Jacob  D.  Angier,  parties  ot  the  second 
part,  Witnesseth:  That  the  said  parties  of  the  first  part, 
for  and  account  of  the  covenants  and  agreements  herein- 
after mentioned,  doth  covenant  and  agree  that  the  said 
parties  of  the  second  part,  their  heirs  and  assigns,  shall 
have  the  exclusive  right  and  privilege  of  digging,  boring 
and  otherwise  operating  for  salt  and  oil  on  the  farm  and 
land  owned  and  occupied  by  the  party  of  the  first  part 
situated,"  etc.,  "together  with  the  right  of  flowing  by 
pumping  or  any  other  manner  collecting  salt  water  and 
oil  and  manufacturing  salt,  refining  or  otherwise  prepar- 
ing the  oil  for  use  and  the  market,  with  the  full  and 
unobstructed  right  of  way  to  and  from  the  springs,  wells 
and  other  works,  they  may  dig,  bore  or  construct  or 
cause  to  be  dug,  bored  or  constructed,  builded  or  erected 
on  said  premises,  with  the  privilege  of  erecting  such 
buildings  and  apparatus  as  may  be  necessary  and  con- 
venient for  the  purpose  aforesaid;  and  the  said  parties 
of  the  second  part,  for  themselves,  covenant  and  agree, 
with  the  parties  of  the  first  part,  that  they,  the  said  par- 
ties of  the  second  part,  shall  bore  or  dig  one  or  more 
wells,  not  less  than  200  feet  deep  if  necessary,  to  obtain 
salt  or  oil  from  the  same  to  the  best  advantage,  working 
with  proper  skill  and  energy  for  the  interest  of  both  par- 
ties; and  to  give  to  the  party  of  the  first  part  one-fourth 

1.  Woodland  Oil  Co.  vs.  Crawford,  55  Ohio  St.,  161;  34  L.  E. 
A.,  62;  44  N.  E.,  1093. 


194  Pennsylvania  Oil  Lease. 

part  of  all  the  oil  obtained  on  or  out  of  said  premises, 
and,  should  the  said  second  party  think  proper  to  engage 
in  the  manufacture  of  salt  from  any  salt  water  they  may 
find  on  the  said  land,  then  they  are  to  give  the  said  party 
of  the  first  part  one-twelfth  of  the  salt  manufactured, 
the  said  party  to  be  at  no  expense  whatever,  and  to 
receive  his  share  of  the  oil  and  salt  at  the  mouth  of  the 
wells  and  salt  works,  on  the  first  secular  day  of  each 
month,  after  oil  in  profitable  quantities  is  found  and  salt 
manufactured.  The  said  work  of  boring  shall  be  com- 
menced by  the  party  of  the  second  part  within  one  year 
after  the  first  day  of  September,  1859,  and  to  be  prose- 
cuted with  reasonable  diligence  and  energy  until  oil  or 
salt  be  found  or  further  search  be  deemed  unprofitable  or 
unnecessary.  And  in  case  the  said  party  of  the  second 
part,  after  fair  and  reasonable  experiment  and  search,  be 
satisfied  that  no  salt  or  oil  or  either  can  be  found  in  suf- 
ficient quantities  to  be  profitable  to  both  parties,  the 
lease  should  be  determined  and  ended  with  the  entire 
possession  and  improvements  thereon  by  the  said  second 
party  and  they  shall  revert  to  the  first  party;  and  should 
the  second  party  occupy  any  considerable  portion  of  the 
improved  land  of  the  first  party  with  works  or  buildings 
or  appliances  which  they  may  dig,  bore,  build,  erect  or 
construct,  to  the  damage  of  the  said  first  party,  shall 
pay  to  the  first  party  a  reasonable  rent  and  compensa- 
tion therefor.  The  said  first  party  expressly  reserves  so 
much  of  the  said  land,  *  *  *  and  should  the  lease  be 
determined  as  heretofore  mentioned,  and  the  possession 
and  improvements,  it  is  understood  that  the  said  second 
parties  may  remove  their  machinery,  engines,  etc.,  and, 
should  oil  or  salt  or  either  be  found  in  profitable  quanti- 
ties, this  is  a  perpetual  lease  for  all  purposes  therein 
mentioned;  and,  further,  the  said  first  party  expressly 
covenants  and  agrees  that  he  has  not  sold  or  leased  any 
part  of  the  premises  herein  mentioned  since  September 
the  1st,  1859,  and  it  further  agreed  that  the  second  party 
shall  not  interfere  with  the  farming  portion  of  the  first 
party  more  than  may  be  necessary  and  proper." 


Forfeiture.  195 

The  court  considered  the  foregoing  instrument  as  a 
license  and  was  made  effective  by  the  lessee  and  his 
assignee  entering  upon  the  premises  and  producing  oil, 
and  denied  the  lessor  the  right  to  maintain  an  action  of 
ejectment  against  the  parties  so  as  to  prevent  them  from 
boring  for  oil,  but  the  lessor  could  maintain  ejectmentji 
the  premises  were  occupied  for  other  purposes  than  those 
specified  in  the  lease. 1 

In  a  lease  which  provided:  "The  free  and  uninter- 
rupted use,  privilege,  and  liberty  unto  any  part  of  the 
200  acres  now  owned  and  occupied  and  in  possession  of 
the  party  of  the  first  part  for  the  purpose  of  prospecting, 
digging  and  boring  for  oil  and  erecting  thereon  furnaces, 
vats  and  anything  necessary  for  prospecting,"  etc.,  the 
lessee  acquired  but  an  incorporeal  right  under  the  lease.8 
So  a  lease  which  gives  the  lessee  a  right  to  go  upon  the 
demised  premises  and  operate  the  same  for  "oil  and 
deliver  to  the  lessor  one-eighth  of  the  oil  obtained  and 
to  drill  a  test  well"  near  a  certain  place,  no  title  vests  in 
the  lessee  where  no  oil  is  found  after  testing  the  prem- 
ises, and  the  lessee  then  abandons  the  premises.3 

A  lease  is  not  forfeited  as  to  the  lessor  under  a  con- 
dition: "In  case  of  failure  to  complete  such  well  within 
such  time,  the  said  parties  of  the  second  part  agree  to 
pay  the  parties  of  the  first  part  for  such  delay  the  sum 
of  $1,000  per  annum  within  three  months  after  the  time 
of  completing  the  well  has  expired,  and  the  party  of  the 
second  part  hereby  agrees  to  accept  such  sum  as  full  con- 
sideration and  payment  for  such  yearly  delay  until  one 
well  shall  be  completed,  and  a  failure  to  complete  one 
well  or  make  such  payments  within  such  time  and  place 
above  mentioned  shall  render  this  lease  null  and  void 
and  to  remain  without  any  effect  between  the  parties 
hereto"  where  the  lessee  fails  to  put  down  a  well  or  make 
the  payments  in  the  time  and  manner  provided  in  the 

1.  Rynd  vs.  Rynd  Farm  Oil  Co.,  63  Pa.  St.,  397. 

2.  Funk  vs.  Haldeman,  53  Pa.  St.,  229. 

3.  Barnhart  vs.  Lockwood,  152  Pa.,  82;  25  Atl.,  237;  Ventine  Oil 

Co.  vs.  Fretts,  152  Pa.,  457;  25  Atl.,  732. 


196  Forfeiture  Clause  for  Benefit  of  Lessor. 

lease.  Nor  is  the  lease  void  ab  initio,  but  such  pro- 
visions are  for  the  benefit  of  the  lessor,  and  the  lessee  is 
liable  for  rent  as  specified  to  be  paid  for  not  completing 
the  well.1 

An  oil  and  gas  lease  which  was  made  in  considera- 
tion of  the  rents  and  royalties,  granted,  demised  and  let 
unto  the  party  of  the  second  part  "for  the  sole  and  only 
purpose  of  drilling  and  operating  for  petroleum,  oil  and 
gas,  for  a  term  of  two  years,  or  so  long  thereafter  as  oil 
or  gas  is  found  in  paying  quantities,  a  certain  tract  of 
land,"  etc.  "To  give  to  the  first  party  one-eighth  of  all 
the  oil  from  wells  producing  less  than  fifty  barrels  per  day 
and  one-fourth  from  wells  producing  more  than  fifty  bar- 
rels per  day,"  etc.,  and  "to  give  $500  per  annum  for  gas 
for  each  and  every  well  drilled,"  in  case  the  gas  is  used 
off  the  premises.  "The  party  of  the  second  part  agrees 
to  pay,  within  ten  days  after  the  execution  of  this  lease, 
the  sum  of  fifty-three  dollars,  and  if  a  well  is  not  com- 
pleted within  six  months  from  the  execution  of  the  lease, 
the  said  party  agrees  to  pay  the  further  sum  of  fifty-three 
dollars,  and  so  on  continuously  every  six  months  during 
the  continuance  of  the  time  herein  specified.  *  *  *  And 
a  failure  to  complete  one  well  or  to  make  any  such  pay- 
ments within  such  time  and  such  place,  as  above  men- 
tioned, shall  render  this  lease  null  and  void,  and  to  re- 
main without  any  effect  between  the  parties."  The  lease 
was  held  to  be  binding  on  the  lessee  until  the  lessor  de- 
clared the  lease  forfeited,  and  the  lessee  was  bound  to 
pay  rent  although  no  well  was  sunk  or  rent  paid,  as  was 
provided  in  the  lease.  The  court  said:  "The  provision 
for  forfeiture  was  doubtless  inserted  in  anticipation  that 
the  lessee  might  make  default  and  become  unable  to  pay, 
in  which  event  he  might  put  an  end  to  the  lessee's  pre- 
tensions and  seek  other  means  of  development.  This 
clause  having  been  inserted  as  a  protection  of  the  lessor 
he  had  a  right  either  t6  declare  a  forfeiture  or  to  affirm 
the  continuance  of  the  contract,  and  if  the  lessor  did  not 
choose  to  avail  himself  of  the  forfeiture  the  lessee  can 

1.  Galey  vs.  Kellerman,  123  Pa.,  491;  16  Atl.,  474. 


Tennessee  Oil  and  Gas  Lease.  197 

not  set  up  as  a  defense  to  an  action  in  affirmance  of  the 
contract."1 

A  lease  with  the  usual  provisions  as  to  the  sinking- 
of  wells  as  a  test  but  with  no  provision  as  to  the  number 
of  wells,  may  be  declared  forfeited  where  the  lessee  ac- 
quires a  lease  on  lands  adjoining'  and  drains  the  lands 
through  the  wells  on  the  adjoining1  lands  and  the  acts  of 
the  lessee  are  fraudulent;2  but  no  forfeiture  can  be  de- 
clared where  the  lease  provides  that  a  certain  well  shall 
be  put  down  and  the  well  is  put  down  and  the  acts  of  the 
lessee  are  not  done  to  defraud  the  lessor.3  Nor  can  a 
lease  be  declared  forfeited  where  no  wells  are  put  down, 
nor  the  rent  paid  for  failure  to  put  down  the  wells 
where  the  lease  contains  no  clause  of  forfeiture,  but  where 
the  lessee  fails  to  drill  or  pay  rent  these  circumstances 
may  be  submitted  to  a  jury  so  as  to  show  abandonment 
of  the  lease  in  an  action  by  the  lessor  to  g^ain  possession 
of  the  land.4 

SEC.  33.  TENNESSEE  OIL  AND  GAS  LEASE— FOR- 
FEITURE.— "This  lease  made  and  entered  into  this  13th 
day  of  May,  A.  D.  1889,  by  and  between  John  Gunlee  and 
his  wife,  of  the  county  of  Pickett  and  state  of  Tennessee, 
of  the  first  part,  and  A.  J.  Fry,  of  Fentress  county,  Ten- 
nessee, of  the  second  part.  Witnesseth,  that  the  party  of 
the  first  part,  in  consideration  of  the  stipulations  and 
rents  and  covenants  hereinafter  contained,  on  the  part 
of  the  said  party  of  the  second  part,  or  his  assigns,  to 
be  paid,  kept  and  performed,  have  granted,  demised  and 
let  unto  the  said  party  of  the  second  part  or  his  assigns, 
for  the  sole  and  only  purpose  of  mining'  and  excavating1 
for  petroleum,  oil,  g-as  or  other  valuable  mineral,  and  for 
the  laying-  of  pipes  or  constructing  of  roads  for  the  trans- 
portation of  oil  or  mineral  or  g-as,  all  of  that  certain  tract 
of  land  situated,"  etc. 

1.  Ray  vs.  Western  Pa.  Nat.  Gas  Co.,  138  Pa.,  576;  12  L.  R.  A., 

290. 

2.  Kleppner  vs.  Lemon,  176  Pa.,  525;  35  Atl.,  109. 

3.  Young  vs.  Forest  Oil  Co.,  194  Pa.,  243;  45  Atl.,  121. 

4.  Marshall  vs.  Forest  Oil  Co.,  198  Pa.,  83;  47  Atl.,  927. 


198  Grounds  of  Forfeiture. 

"To  have  and  to  hold  the  said  premises  for  the  said 
purposes  only,  unto  the  said  party  of  the  second  part,  or 
his  assigns,  for,  during",  and  for  the  full  term,  of  thirty 
years  next  ensuing  the  day  and  year  above  written.  The 
said  party  of  the  second  part  hereby  covenants  in  consid- 
eration of  the  said  grant  and  demise  to  deliver  unto  the 
said  party  of  the  first  part,  their  heirs  and  assigns,  the  full 
equal  one-eighth  part  of  all  the  petroleum,  oil.  gas,  or  val- 
uable minerals  discovered,  excavated,  pumped  and  raised 
on  the  premises  herein  leased,  as  produced,  pumped,  exca- 
vated in  the  crude  state.  The  said  parties  of  the  first 
part  are  to  freely  use  and  enjoy  the  said  premises  for  the 
purpose  of  tillage,  except  such  parts  as  shall  be  neces- 
sary for  said  mining  purposes,  and  a  right  of  way  over 
and  across  the  said  premises  to  the  place  or  places  of 
mining  and  excavating.  It  is  therefore  agreed  that  the 
second  party  shall  not  enter  upon  any  lands  in  actual 
cultivation,  or  use  or  cut  any  timber  on  said  premises 
without  the  consent  of  the  first  parties.  The  said  parties 
of  the  first  part  covenant  to  grant  to  the  said  party  of 
the  second  part  the  right  to  remove  any  machinery  or 
fixtures  placed  on  said  premises  by  said  party  of  the 
second  part.  The  said  party  of  the  second  part  covenant 
to  commence  operations  for  said  mining  purposes  within 
two  years  from  the  execution  of  this  lease  or  to  there- 
after pay  the  parties  of  the  first  part  on  demand  thirty 
dollars  per  annum  until  work  is  commenced.  It  is  fur- 
ther agreed  that  the  second  party  shall  commence  opera- 
tions to  drill  one  well  in  Pickett,  Pentress  or  Overton 
county  on  or  before  the  first  day  of  September  next.  In 
failure  whereof  this  lease  is  to  be  null  and  void  and  of 
no  more  effect,"  etc. 

The  renewal  was  as  follows:  "Received  of  A.  J.  Fry 
fifteen  dollars  In  full  of  all  sums  due  upon  the  oil  and 
mineral  lease  upon  land  belonging  to  us,  executed  to  A.  J. 
Fry  on  May  13,  A.  D.  1889,  and  in  consideration  thereof 
it  is  agreed  that  the  provisions  of  said  lease  relating  to 
mining  operations  and  rental  are  hereby  modified,  so  that 
the  time  to  commence  operations  is  extended  to  twelve 


Failure  to  Make  Test.  199 

months  from  this  date,  and  in  case  said  operations  are 
not  begun  the  lessors  shall  have  a  right  to  forfeit  said 
lease,  unless  the  lessee  upon  written  notice  of  the  inten- 
tion of  forfeiture,  pay  the  annual  sum  mentioned  in  said 
lease  for  further  delay  at  the  end  of  each  year  thereafter. 
Dated  this  4th  day  of  September,  1894." 

The  above  lease  was  held  not  forfeited  where  work 
was  not  begun  as  provided  in  the  lease.  To  work  a 
forfeiture  of  the  lease  the  lessor  was  required  to  give 
a  written  notice  to  the  lessee  so  that  the  lessee  may  have 
an  opportunity  to  pay  the  rent  for  delay  as  was  provided 
in  the  lease.  The  execution  of  a  second  lease  for  the 
same  premises  to  another  person  is  not  a  sufficient  notice 
where  the  second  lease  was  made  upon  the  condition 
that  the  first  was  forfeited.1  But  a  lease  for  ninety-nine 
years  to  the  lessees  "of  all  his  mineral  and  petroleum  in- 
terests for  the  purpose  of  exploring  for  coal,  petroleum, 
*  *  *  for  mining  and  working,  *  *  *  and  for  such 
purpose  erect  all  necessary  buildings."  *  *  *  And  the 
lessees  "obligate  and  bind  themselves  to  pay  the  said 
first  parties  one-eighth  part  of  the  net  profits  of  what- 
ever may  be  discovered  and  worked  in  and  upon  said 
lands  deemed  advisable  to  be  tested  and  worked" by  the 
lessees,  and  the  lessees,  "further  agree  to  commence  test- 
ing said  property  within  three  years  time."  The  lease 
was  held  to  be  executory,  and  only  perfected  by  taking 
possession,  and  the  testing  was  a  condition  upon  which 
the  lease  depended.  If  the  test  should  show  no  minerals 
the  lease  was  at  an  end,  and  if  upon  making  a  test  the 
land  showed  the  presence  of  valuable  minerals  the  les- 
see was  bound  to  operate  the  land  in  good  faith  for  the 
profit  of  the  lessees  and  the  owner  of  the  fee.  The  con- 
tinued validity  of  the  lease  depended  upon  the  conditions 
of  making  the  tests  and  the  working  of  the  land  there- 
after, and  for  a  failure  to  do  either,  the  lease  was  upon 
these  conditions  and  was  terminated  at  the  end  of  three 
years  by  its  own  terms.  * 

1.  South  Penn.  Oil  Co.  vs.  Stone  (Tenn.  Ch.  App.),  57  S.W.,  374. 

2.  Petroleum  Oil  Co.  vs.  Coal,  Coke  &  Mfg.  Co.,  89  Tenn.,  381; 

18  S.  W.,  65. 


200  Texas  Oil  Lease. 

SEC.  34.  TEXAS  OIL  LEASE — FORFEITURE. — A  lease 
in  the  usual  form  made  by  a  husband  and  wife,  whereby 
the  lessors,  for  a  recited  consideration  of  $1.00,  granted 
and  conveyed  to  the  lessee  seven-eighths  of  all  the  oil 
and  gas  in  and  under  a  certain  tract  of  land  and  reserved 
to  themselves  one-eighth  of  all  the  oil  and  gas  as  a  roy- 
alty, and  the  lease  contained  a  provision.  "In  case  no 
well  is  begun  or  prosecuted,  with  due  diligence,  within 
four  months  after  this  date,  then  this  grant  shall  become 
immediately  null  and  void."  The  lessee  did  nothing 
within  the  time  specified  for  the  commencement  of  ope- 
rations other  than  placing  a  load  of  lumber  on  the  ground 
the  last  day  before  the  time  expired,  and  the  lumber 
was  to  be  used  in  connection  with  the  drilling  of  the  well, 
the  question  as  to  whether  the  hauling  of  the  lumber  was 
the  commencement  of  a  well  was  a  question  of  fact  to  be 
determined  by  the  jury,  where  there  is  evidence  by  per- 
sons who  bore  oil  wells  as  to  what  is  the  commencement 
of  a  well.  * 

1.  Forney  vs.  Ward,  Tex.  Civ.  App.;  62  S.  W,,  168. 


RENTS  AND   ROYALTIES. 


CHAPTER  XIV. 

SECTION  1.  CONSTRUCTION  OF  OIL  AND  GAS 
LEASES.  —This  chapter  will  treat  of  the  liability  of  the 
lessee  for  rent  and  royalties  which  are  to  be  paid  the 
lessor  as  a  consideration  for  the  lease.  It  must  be  borne 
in  mind  that  the  courts  usually  favor  the  lessor  in  the 
construction  of  oil  and  gas  leases,  so  the  lessee  or  his  as- 
signees may  be  held  liable  for  rent  or  other  covenants  in 
an  oil  or  gas  lease  where  there  would  be  no  liability 
under  ordinary  leasing.  The  reasons  why  a  lease  is  con- 
strued more  strictly  against  a  lessee  are,  that  the  lessee 
is  usually  a  man  experienced  in  the  business  and  knows 
the  value  of  the  land  for  the  purposes  for  which  it  is 
leased,  and  that  the  leases  are  prepared  by  the  lessee, 
who  is  well  aware  of  the  meaning  of  all  its  terms,  and  the 
lessor  is  usually  a  person  who  has  no  experience  in  such 
affairs  and  does  not  know  the  value  of  the  lands.  It  is 
also  the  policy  of  the  law  that  lands  should  be  developed 
and  made  productive,  so  a  lease  will  not  be  upheld  which 
tends  to  tie  up  the  lands  for  an  indefinite  period. l  So 
the  lessee  is  held  bound  not  only  to  perform  all  the  ex- 
press covenants  but  also  covenants  which  are  implied.1 

SEC.  2.  GROUNDS  OF  LIABILITY  FOR  RENT,  LEASE 
SIGNED  ONLY  BY  HUSBAND  WHERE  WILL  HAD  AN  IN- 
TEREST— CONSTRUCTION  OF  PARTICULAR  PROVISIONS. — 
The  lessee  is  liable  for  rent  to  the  lessor  on  the  ground 
not  only  of  privity  of  estate,  but  also  privity  of  contract 

1.  Huggins  vs.  Daley,  99  Fed.  Rep.,  606;  Steelsmith  vs.  Gartlan, 

45  W.  Va.,107. 

2.  Cases  supra  1;  Funk   vs.    Haldeman,  53  Pa.,  229;  Hall  vs. 

Vernon,  47  W.  Va.,  295;  34  S.  E.,  764;  49  L.  R.  A.,  464. 


202  Liability,  Rent  and  Royalty. 

between  the  lessor  and  lessee.1  Oil  and  gas  leases  are 
intricate  and  complicated  and  contain,  as  a  general  rule, 
many  covenants  and  conditions  apparently  conflicting, 
so  the  rules  and  principles  laid  down  by  the  courts  in 
construing  oil  and  gas  leases  will  assist  in  determining 
the  liability  of  the  lessee  or  his  assignee. 

It  has  been  heretofore  shown  that  a  lease  of  land  for 
the  production  of  oil  or  gas  was  a  disposition  of  the  land 
itself,  but  a  lessee  was  held  bound  to  pay  rent  under  a 
lease  for  the  production  of  oil,  although  the  lease  was 
signed  by  the  husband  alone  and  the  wife  had  an  interest 
in  the  land,  when  the  lessee  was  undisturbed  in  the  pos- 
session of  the  land  by  the  wife  and  the  lease  provided 
for  a  certain  rental  and  for  operations  on  the  land  by  a 
certain  time,  or  rent  where  no  operations  were  begun, 
and  no  operations  were  begun,  and  the  exclusive  priv- 
ilege of  drilling  was  given  to  the  lessee  and  the  discovery 
of  the  wife's  interest  was  made  after  the  lease  was  exe- 
cuted and  the  signature  of  the  wife  to  the  lease  thereafter 
could  be  secured  if  the  lessee  so  desired.2  So  where 
operations  were  to  begin  by  a  certain  time,  and  to  be 
completed  by  a  certain  time,  and,  for  failure  to  do  so,  to 
pay  a  certain  rental  per  annum,  per  acre,  if  no  opera- 
tions were  begun,  and  there  was  a  clause  in  the  lease 
that  the  lessor  leases  one  acre  anywhere  out  of  the  above 
described  land  for  a  test  well,  and  if  oil  or  gas  is  found 
then  the  party  of  the  second  part  has  the  balance  of  the 
above  described  lands  to  drill,  at  the  same  royalty  as 
the  within  lease;  and  the  whole  land  was  described  in 
the  lease,  the  lease  covered  the  whole  tract  and  the 
lessee  was  required  to  pay  rent  for  the  whole  for  failure 
to  operate  and  was  not  limited  to  the  acre  on  which  the 
test  well  was  to  be  put  down.8  So  where  the  lessee  was 
to  pay  so  much  for  the  first  well,  if  it  produced  a  certain 

1.  Edmonds  vs.  Mounsey,  14  and  App.  599;  44  N.  E.,  196. 

2.  Kunkle  vs.  Peoples  Nat.  Gas  Co.,  165  Pa.,  133;  33  L.  R.  A., 

847;  30  Atl.,  719;  Matthews  vs.  Peoples  Nat.  Gas  Co.,  179 
Pa.,  165;  36  Atl.,  216. 

3.  Columbia  Oil  Co.  vs.  Blake,  12  Ind.  App.,  680;  42  N.E.,  234. 


Clause  of  Forfeiture.  203 

amount  of  oil,  and  so  much  more  if  the  production  should 
be  greater,  and  in  case  a  second  well  was  put  down  a 
certain  additional  sum,  but  the  first  well  failed  and  the 
second  well  was  productive,  the  lessee  was  not  relieved 
from  paying  the  additional  sum  provided  in  the  lease  for 
the  second  well,  because  the  first  well  failed. 1 

SEC.  3.  CLAUSE  OF  FORFEITURE  is  FOR  THE  BEN- 
EFIT OF  THE  LESSEE  AND  WILL  NOT  RELIEVE  THE 
LESSEE  FROM  THE  PAYMENT  OF  RENT  WHEN  COV- 
ENANTS IN  THE  LEASE  ARE  NOT  PERFORMED. — 
When  a  lease  contains  a  stipulation  that  the  lease  shall 
be  void,  if  the  lessee  does  not  perform  the  covenants  con- 
tained in  the  lease^  the  lease  is  only  void  at  the  option 
of  the  lessor;2  and  the  lessee  cannot  set  up  a  default  on 
his  part  as  a  defense  to  an  action  for  rent  due  the  lessor.3 
And  where  there  is  another  provision  in  the  lease  that 
the  lease  shall  not  be  renewed  only  by  the  mutual  con- 
sent of  both  parties,  and  no  action  shall  accrue  to  either 
on  account  of  a  breach  of  the  covenants,  the  lessee  is  not 
relieved  from  the  payment  of  rent  and  such  covenants 
are  void  only  if  the  lessor  choose  to  declare  them  to  be 
void.4 

SEC.  4.  LIABILITY  FOR  RENT  IN  CONNECTION  WITH 
CLAUSE  OF  FORFEITURE  IN  DETAIL. — Where  an  oil  and 
gas  lease  for  a  term  of  twenty  years  provided  that  work 

1.  Brushwood  Div.  Co.  vs.  Hickey,  16  Atl.,  70. 

2.  Ray  vs.  Western  Pa.  Nat.  Gas  Co.,  138  Pa.,  576;    20  Atl., 

1065;  Smiley  vs.  Western  Pa.  Nat.  Gas  Co.,  138  Pa.,  576; 
21  Atl.,  1;  Agerter  vs.  Vandergfift,  138  Pa.,  593;  21  Atl., 
202. 

3.  West  Moreland  Nat.  Gas   Co.  vs.   DeWitt,  130  Pa.,  235;  18 

Atl.,  724;  Guffy  vs.  Killerman,  123  Pa.,  491;  16  Atl.,  474; 
Randal  vs.  Tantum,  98  Cal.,  390;  33  Pac.,  433. 

4.  Leatherman  vs.  Oliver,  151  Pa.,  646;  25  Atl.,  309;  Ogden  vs. 

Hatry,  145  Pa.,  640;  23  Atl.,  334;  Phillips  vs.  Vander- 
grift,  146  Pa.,  357;  30  Atl.,  1638:  Matthews  vs.  Peoples 
Nat.  Gas  Co.,  179  Pa.,  165;  36  Atl.,  216;  Jackson  vs. 
O'Hare,  183  Pa.,  233;  38  Atl.,  624;  Roberts  vs.  Bett- 
man,  45  W.  Va.,  143;  30  S.  E.,  95;  Miller  vs.  Logan,  31 
Pittsb.,  L.  J.  U.  S.,  217. 


204  Liability  for  Rent  in  Detail. 

was  to  be  commenced  in  ninety  days,  and  that  the  work 
was  to  be  prosecuted  actively,  diligently  and  continu- 
ously and  a  well  was  to  be  completed  by  a  certain  date, 
and,  for  failure  to  do  so,  to  pay  the  lessor  a  certain 
amount  per  annum,  payable  quarterly  in  advance,  and 
no  work  was  done  on  the  leased  land,  and  the  first 
quarter  was  paid  voluntarily  and  a  judgment  recovered 
for  the  second  quarter  and  paid,  and  an  action  was 
brought  for  the  third  and  fourth  quarters  and,  as  a  de- 
fense to  the  suit,  the  lessee  set  up  a  provision  in  the 
lease  which  was  as  follows:  "It  is  further  understood 
and  agreed  upon  failure  of  the  party  of  the  second  part 
to  perform  all  the  covenants  herein  contained,  such 
failure  to  perform,  or  breach  of  the  said  covenants,  shall 
work  an  absolute  forfeiture  of  this  grant,"  the  forfeiture 
clause  was  held  to  be  for  the  benefit  of  the  lessor,  and 
was  no  defense  to  the  suit;  and  that  a  lessee  could  not  set 
up  his  own  default  to  defeat  a  covenant  in  a  lease.1  So 
under  a  covenant  in  a  lease  that  a  failure  to  complete  a 
well,  or  to  pay  the  rent,  "within  such  time  and  place  as 
above  mentioned  shall  render  the  lease  null  and  void, 
and  to  remain  without  any  force  and  effect  between  the 
parties;"  the  lease  was  held  to  continue  in  force  until 
the  lessor  would  declare  a  forfeiture  and  the  lessee  was 
liable  for  rent.2  Where  the  lease  provides  that  the 
lessee  may  surrender  the  lease  at  any  time,  the  lease  is 
in  force  against  the  lessee  until  surrendered  and  rent 
must  be  paid  up  to  the  time  of  giving  up  the  lease, 
though  the  lease  provided  that  the  surrender  of  the 
lease  would  release  the  lessee  from  all  the  covenants  in 
the  lease  and  all  money  due. 8  Such  provisions  refer  to 
future  liability  and  not  to  liabilities  already  incurred.4 
So  where  a  lease  provided  that  a  failure  to  sink  a  well, 
or  pay  the  rental,  would  have  the  same  force  and  effect 

1.  Wills  vs.  Mfct.  Nat.  Gas  Co.,  130  Pa.,  222;  18  Atl.,  721. 

2.  Bay  vs.  Western  Pa.  Nat.  Gas  Co.,  138  Pa.,  576;  20  Atl.,  1065; 

Galey  vs.  Killerman,  123  Pa.,  491;  16  Atl.,  474. 

3.  Danthett  vs.  Gibson,  11  Pa.  Super.  Ct.,  543. 

4.  Bettman  vs.  Shadle,  22  Ind.  App.,  542;  53  N.   E.,  662;  Ed- 

wards vs.  Mounsey,  15  Ind.  App.,  599;  44  N.  E.,  196. 


When  Lessee  is  Relieved  from  Payment.  205 

as  if  the  lease  was  never  made,  will  not  release  the 
lessee  from  the  payment  of  rent;1  and  where  the  lease 
provided  that  the  lease  would  be  void  and  would  not  be 
of  any  force  and  effect  without  the  consent  of  both  par- 
ties, it  was  for  the  lessor  to  say  whether  the  lease  would 
be  continued  or  declared  forfeited  for  failure  to  drill  or 
pay  rent.2  A  lease  containing1  these  provisions  will  sus-~ 
tain  an  action  for  a  default  in  the  covenants  on  the  part 
of  the  lessee;3  and  it  makes  no  difference  whether  the 
lease  creates  an  estate  in  the  lessee  or  is  a  mere  license.4 
If  the  lessee  has  an  option  to  drill,  or  pay  the  rental, 
the  lessee  must  do  one  or  the  other  and  must  pay  rent,  if 
no  well  is  dug. 5  So  where  gas  was  to  be  paid  for  as  long 
as  it  was  used  off  the  premises,  the  lessee  must  notify 
the  lessor  when  gas  is  no  longer  used,  or  the  lessee  will 
be  liable.8  The  lessee  is  liable  though  the  lease  is  as- 
signed and  the  lessor  demands  payment  from  the  as- 
signee.7 If  the  lessee  assigns  a  half  interest  in  the 
lease,  both  the  lessee  and  assignee  are  jointly  liable  for 
the  rent.8  The  lessee  is  held  liable  on  the  ground  of  a 
privity  of  contract  which  exists  between  lessor  and 
lessee  during  the  entire  life* of  the  lease,  although  the 
lease  is  assigned.9 

SEC.  5.  WHAT  WILL  NOT  RELIEVE  THE  LESSEE 
FROM  PAYING  RENT— WHERE  A  TEST  WELL  is  TO  BE 
SUNK,  OR  RENT  is  TO  BE  PAID,  THE  WELLS  MUST  BE 
ACTUALLY  SUNK — IT  CANNOT  BE  SHOWN  NO  OIL  EXISTS 

1.  Ogden  vs.  Hatly,  146  Pa.,  640;  23  Atl.,  334. 

2.  Phillips  vs.  Vandergift,  146  Pa.,  357;  23  Atl.,  347. 

3.  Galey  vs.  Killerman,  123  Pa.,  491;  14  Atl.,  474. 

4.  Evans  vs.  Consumers  Gas  Trust  Co.,  29  N.  E.,  398;  31  L.  R. 

A.,  673. 

5.  McMillan  vs.  Philadelphia  Co.,  159  Pa.,  142;  28  Atl.,  220. 

6.  Dauble  vs.  Union  Heat  &  Light  Co.,  172  Pa.,  388;  33  Atl.,  694. 

7.  Pittsburg  Consolidated  Coal  Co.   vs.   Greenlee,  164  Pa.  St., 

549;  30  Atl.,  489. 

8.  Jackson  vs.  O'Hara,  183  Pa.  St.,  233;  30  Atl.,  624. 

9.  Washington  Natural  Gas  Co.  vs.  Johnson,  123  Pa.,  575;  16 

Atl.,  799;  Edmonds  vs.  Mounsey,  15  Ind.   App.,  399;  44 
N.  E.,  196;  Trobin  vs.  McAdams,  8  Bush,  74. 


206  Number  of  Wells  to  Be  Sunk. 

ON  THE  LAND. — Where  the  lease  provides  that  the  lessee 
shall  pay  the  lessor  a  certain  amount  if  oil  or  gas  is  pro- 
duced in  a  certain  amount,  the  test  wells  must  be  sunk  to 
relieve  the  lessee  from  the  payment  of  rent,  and  it  can- 
not show  by  experts  no  oil  exists. 1  Nor  will  the  lessee  be 
relieved  from  the  sinking"  of  wells  or  the  payment  of  rent 
by  making  tests  on  adjoining  lands,  and  the  result  of  the 
tests  show  that  no  oil  or  gas  is  found  on  the  adjoining 
lands,*  or  the  test  wells  show  that  no  oil  exists  in  the 
community;3  and  the  lessee  will  not  be  relieved  by  the 
proof  that  scientific  tests  have  been  made  and  show  that 
no  oil  or  gas  exists.4  And  when  the  body  of  land  leased 
consists  of  several  tracts,  and  the  body  of  land  is  exten- 
sive, the  several  tracts  will  be  treated  as  several  pieces 
and  wells  must  be  put  down  on  each.5  So  where  a  rental 
was  to  be  paid  on  a  certain  day  each  year  as  long  as  the 
lessee  failed  to  sink  wells,  the  lessee  is  liable  though  the 
lease  contained  a  forfeiture  clause  in  case  no  well  was 
sunk.8  And  where  a  lease  provides  for  the  sinking  of 
three  wells  with  a  certain  rental  from  each,  the  lessee 
must  pay  the  rental  where  the  third  well  is  not  sunk,  and 
it  is  no  defense,  on  the  part  of  the  lessee,  that  as  much 
gas  could  be  produced  from  the  two  wells  as  three  wells 
on  the  land. 7 

SEC.  6.  LESSEE  is  REQUIRED  TO  SINK  THE  REQUIRED 
NUMBER  OF  WELLS  TO  DEVELOP  THE  LAND,  IF  THE 
LEASE  is  SILENT  AS  TO  THE  NUMBER  OF  WELLS  TO  BE 
PUT  DOWN,  OR  MUST  PAY  DAMAGES  FOR  FAILURE  TO  DO 
so — WHERE  THE  LEASE  PROVIDES  FOR  THE  NUMBER  OF 

1.  Iddings  vs.  Equitable  Gas  Co.,  8  Pa.  Super.  Ct.,  244. 

2.  Gibson  vs.  Oliver,  158  Pa.,  277;  27  Atl.,  961;  Johnstown  F.  R. 

Co.  vs.  Egbert,  152  Pa.,  53;  25  Atl.,  151;  Springer  vs.  Cit- 
izens Nat.  Gas  Co.,  145  Pa.,  430. 

3.  Gibson  vs.  Oliver,  158  Pa.,  277;  27  Atl.,  961. 

4.  Cochran  vs.  Pew,  159  Pa.  St.,  184;  28  At!.,  219;  Springer  vs. 

Citizens  Nat.  Gas  Co.,  145  Pa.,  430;  22  Atl.,  986. 

5.  Johnstown  and  T.  R.  Co.  vs. -Egbert,  152  Pa.,  53;  25  Atl.,  151. 

6.  Conger  vs.  Nat.  Transp.  Co.,   165  Pa.,   561;  30  Atl.,   1038; 

Leatherman  vs.  Oliver,  151  Pa.,  646;  25  Atl.,  309. 

7.  Young  vs.  Equitable  Gas  Co.,  5  Pa.  Super.  Ct.,  232. 


Wells  Required  to  Be  Put  Down.  207 

WELLS  TO  BE  PUT  DOWN,  NO  MORE  NEED  BE  BORED  BY 
LESSEE. — Where  the  lessor  is  to  receive  a  part  of  the 
product  as  a  royalty  for  the  oil  or  gas  produced  from  the 
land,  and  the  lessee  is  required  to  develop  the  land  for 
the  production  of  oil  and  gas,  and  if  the  lease  is  silent  as 
to  the  number  of  wells  to  be  sunk,  the  lessee  will  be 
required  to  sink  a  sufficient  number  of  wells  to  develop 
the  land  and  protect  the  same  from  drainage  by  wells  on 
other  lands  in  the  same  territory. 1  So  where  the  lessor 
was  to  receive  a  part  of  the  oil  as  a  royalty,  and  the 
lessee  was  to  prosecute  the  work  with  due  diligence,  and 
the  lessee  failed  to  do  so,  but  worked  the  lands  adjoin- 
ing, the  lessor  can  recover  the  value  of  the  oil  the  lessee 
would  be  entitled  to  receive,  if  the  lands  were  worked  by 
the  lessee;2  but  the  lessee  is  not  bound  to  develop  the 
land  or  pay  for  the  prospective  royalty  when  the  land 
could  not  be  worked  at  a  profit;3  and  under  an  implied 
covenant  to  develop  the  land,  the  judgment  of  the  lessee 
that  the  land  could  not  be  worked  at  a  profit,  is  entitled 
to  greater  weight  than  the  opinion  of  the  judge  who  tried 
the  case,  the  lessor  and  expert  witnesses.4  So  where  no 
rent  was  agreed  to  be  paid  to  the  lessor  in  case  opera- 
tions were  not  prosecuted  on  the  lands  under  a  lease,  giv- 
ing the  lessee  all  right,  title  and  interest  in  the  oil,  the 
lessor  was  entitled  only  to  nominal  damages;5  and  where 
the  lease  sets  forth  the  number  of  wells  to  be  drilled  by 
the  lessee  there  is  no  implied  covenants  that  the  lessee 
is  to  put  down  additional  wells.6 

SEC.  7.  WHEN  LESSEE  is  NOT  LIABLE. — A  lessor  is 
not  entitled  to  share  in  the  royalty  from  the  oil  produced 
in  lands  not  owned  by  the  lessor,  where  the  well  was 

1.  Kleppener  vs.  Lemon,  176  Pa.,  502;  35  Alt.,  109;  Harris  vs.  Ohio 

Oil  Co.,  57  Ohio  St.,  118;  48  N.  E.,  502;  Glascow  vs.  Char- 
tiers  Oil  Co.,  152  Pa.,  48;  25  Atl.,  232;  Koch's  App.,  93  Pa., 
434;  McNightvs.Manfct.  Nat.  Gas,  146 Pa., 185;  23  Atl.,  164. 

2.  Bradford  Oil  Co.  vs.  Blair,  113  Pa.,  83;  4  Atl.,  218. 

3.  Bradford  Oil  Co.  vs.  Blair,  113  Pa.,  83;  4  Atl.,  218. 

4.  Young  vs.  Forest  City  Oil  Co.,  194  Pa.,  243;  45  Atl.,  121. 

5.  Chamberlain  vs.  Parker,  45  N.  Y.,  569. 

6.  Colgan  vs.  Forest  City  Oil  Co.,  194  Pa.,  234;  45  Atl.,  119. 


208  When  Not  Liable. 

located  on  snch  lands  by  a  mistake  both  of  the  lessor  and 
lessee;1  and  a  lessee  is  not  liable  for  rental  where  a  well 
was  sunk,  and  then  permanently  abandoned,  under  a 
lease  for  twenty  years,  providing1  that  the  lessor  is  to 
receive  $500  for  each  well  of  gas  used  off  the  premises, 
and  the  gas  was  to  be  found  in  paying  quantities,  and 
made  use  of  by  the  lessee.2  The  lessee  is  not  liable  for 
rent  or  royalty,  when  the  lessor  had  only  a  life  estate  in 
the  premises,  and  was  not  authorized  by  law  to  dispose 
of  the  oil  or  gas,  when  the  lessee  never  entered  into  pos- 
session of  the  premises.3  So  where  a  lease  was  made  by 
the  wife,  of  her  lands,  and  the  law  required  such  an 
instrument  to  be  signed  by  both  husband  and  wife,  and 
the  wife  alone  signed  the  lease,  the  lessee  is  not  liable 
for  rent  where  such  lessee  did  not  enter  into  possession 
and  the  lease  was  void  because  the  husband  did  not  join 
in  the  lease.4  The  lessee  is  not  liable  for  rent  if  the 
lessor  does  not  recognize  the  validity  of  the  lease  at  the 
time  the  suit  is  brought.6  A  lessee  is  not  liable  for  rent 
when  no  possession  was  taken  of  the  premises  where  the 
lease  was  to  expire  by  a  certain  time,  if  no  well  was 
drilled,  unless  the  lessee  paid  a  certain  amount  to  con- 
tinue the  life  of  the  lease.  The  lease,  in  such  a  case, 
is  a  mere  option,  and  neither  the  lessor  nor  lessee  is 
bound.6  Such  a  lease  becomes  void  by  its  own  provi- 
sions;7 but  is  not  void  where  the  lease  provides  for  cer- 
tain monthly  payments  until  the  completion  of  a  well, 
and  if  the  rent  is  not  paid,  the  lease  is  to  be  absolutely 
void,  the  lease  is  optional  only  as  to  the  lessor. 8 

So,  where  there  are  no  express  covenants  in  a  lease 
that  a  rental  shall  be  paid,  the  lessee  is  not  liable  when 

1.  Mays  vs.  Dwight,  82  Pa.,  464. 

2.  Williams  vs.  Guffy,  178  Pa.  St.,  342;  35  Atl.,  875. 

3.  Marshall  vs.  Mellon,  179  Pa.,  371;  36  Atl.,  201. 

4.  Columbia  Oil  Co.  vs.  Blake,  13  Ind.  App.,  680;  42  N.  E.,  234. 

5.  Wheeling  vs.  Phillips,  10  Pa.  Super.  Ct.,  634. 

6.  Brooks  vs.  Kunkle.  —  Ind.  App.,  — ;  57  N.  E.,  260;  Snod- 

grass  vs.  South  PennOil  Co.,  47  W.Va.,  509;  35  S.  E.,  820. 

7.  Kenton  Gas  &  Electric  Co.  vs.  Downey,  17  Ohio  C.  C.,  101. 

8.  Jackson  vs.  O'Hara,  183  Pa.,  233;  38  Atl.,  624. 


Oil  in  Paying  Quantities.  209 

the  lease  was  to  be  void  unless  a  well  was  put  down  by 
a  certain  time,  unless  a  certain  rental  was  paid;1  and 
where  a  lease  does  not  give  the  lessee  the  exclusive  priv- 
ilege to  drill,  the  relation  of  landlord  and  tenant  does 
exist,  and  the  lessee  did  not  take  possession  and  the 
lease  was  to  be  void  if  wells  were  not  put  down  by_a 
certain  time  or  a  rental  paid.  *  So  where  a  well  is  put 
down  to  the  usual  depth  and  no  oil  is  found,  the  land  is 
then  properly  developed,  by  lessee,  and  he  is  not  liable 
for  rent.3 

SEC.  8.  LESSEE  LIABLE  WHEN  ANOTHER  LESSEE 
DRILLED  ON  THE  LAND  FOR  WHICH  THE  LESSEE  WAS  TO 
BE  PAID— PAYING  QUANTITIES  CONSTRUED. — The  lessee 
cannot  defeat  the  claim  of  the  lessor  for  rent  because 
another  was  permitted  by  the  lessor  to  enter  the  prem- 
ises to  drill  for  oil  under  an  agreement  with  the  original 
lessee  that  such  lessee  would  be  paid  for  such  privilege 
given  to  the  second  lessee.4  So  where  a  lease  provided 
that  the  lessor  was  to  receive  a  certain  sum  in  cash  in 
hand  and  further  additional  sum,  if  oil  was  found  in  pay- 
ing quantities,  "to  be  paid  within  thirty  days  from  the 
completion  of  the  well,"  the  lessee  was  to  pay  the  addi- 
tional sum  if  oil  was  produced  for  thirty  days  in  such 
quantities  as  would  warrant  the  operation  of  the  well 
for  that  period  and  the  production  for  the  thirty  days 
need  not  be  of  such  an  amount  as  would  cover  the  cost 
of  the  well.6  So  gas  is  produced  in  paying  quantities 
under  a  provision  of  a  lease  if  the  gas  is  pumped  into 
the  pipe  lines  of  the  lessee  and  sold  to  customers  and 
the  rental  must  be  paid.'  So  where  the  lessee  had  a 
right  to  surrender  the  lease  when  the  well  ceased  to 
produce,  a  payment  to  the  lessee,  stating  that  it  was  in 

1.  Glascow  vs.  Chartiers  Oil  Co.,  152  Pa.,  48;  25  Atl.,  232. 

2.  Diamond  Plate  Glass  Co.  vs.  Curties,  22  Ind.  App.,  346;  52 

N.  E.,782. 

3.  Rice  vs.  Ege  (C.  C.  N.  D.  N.  Y.),  42  Fed.  R.,  661. 

4.  Horberg  vs.  May,  153  Pa.,  216;   25  Atl.,  750. 

5.  Collins  vs.  Mechling,  —  Pa.,  — ;  38  W.  N.  C.,  235. 

6.  Hankey  vs.  Krump,  12  Ohio  C.  C.,  95. 


210  When  Relieved  from  Payment. 

full  for  all  royalties  does  not  amount  to  a  surrender 
of  the  lease  where  the  lease  was  afterwards  assigned, 
and  fhe  lessee  or  assignee  must  pay  the  royalty  for  the 
year  thereafter  if  the  premises  are  held  under  the  lease 
at  the  beginning*  of  the  year. l  So  where  a  default  was 
made  before  the  lease  was  surrendered,  the  lessee  is  not 
relieved  from  the  payment  of  the  amount  due,  in  the 
lease,  under  a  provision  that  the  lessee  "may,  at  any 
time,  surrender  up  this  lease  and  be  relieved  from  any 
and  all  payments  or  liabilities."2  So  a  surrender  of  a 
lease  after  holding  it  for  a  period  of  ten  months  will  not 
release  the  lessee  from  the  payment  of  rent  for  that 
year,  when  such  rent  was  to  be  paid  if  no  well  was  com- 
pleted in  that  year.3  So  where  a  rental  was  to  be  paid 
as  long  as  gas  was  found  in  paying  quantities,  the  lessee 
is  not  relieved  from  liability  to  pay  the  stipulated  rent 
where  a  gas  well  was  sunk  and  piped  from  the  well  by 
shutting  off  the  gas  from  the  well  and  not  notifying  the 
lessor,  though  the  lessee  had  a  right  to  surrender  the 
lease.4  So  a  failure  to  demand  rent  for  the  non-comple- 
tion of  a  well  by  a  certain  time  will  not  defeat  its  collec- 
tion thereafter;5  nor  a  notice  of  an  election,  on  the  part 
of  the  lessee,  to  terminate  a  lease,  on  the  first  day  of  an- 
other year,  will  not  relieve  the  lessee  from  the  payment 
of  rent  for  that  year.6  But  a  lessee  is  relieved  from  the 
further  payment  of  rent,  when  the  gas  is  shut  off  and  the 
lessor  is  notified,  when  the  lease  gives  the  lessee  a  right 
to  do  so  upon  ceasing  to  use  gas;7  and  where  the  lessor  had 
a  right  to  declare  a  forfeiture  or  collect  money,  and  if  the 
money  was  collected  the  lessee's  lease  would  be  extended 

1.  Coulter  vs.  Conemaugh  Gas  Co.,  —  Pa.,  — ;  50  Pitts.  L.  J. 

N.  S.,281. 

2.  Aderhold  vs.  Oil  Supply  Co.,  158  Pa.,  401;  28  Atl.,  22. 

3.  Breckenridge  vs.  Parrott,  15  Ind.  App.,  411;  44  N.  E.,  66. 

4.  Dauble  vs.  Union  Heat.  &  Light  Co.,  172  Pa., 388;  33  Atl.t  694. 

5.  Pittsburg  Consolidated  Coal  Co.  vs.  Greenlee,  164  Pa.,  549;  30 

Atl.,  489. 

6.  Nesbit  vs.  Godrey,  155  Pa.,  251;  25  Atl.,  621. 

7.  Indianapolis  Gas  Co.  vs.  Teters,  15  Ind.  App.,  475;  44  N.  E., 

549. 


When  Relieved  from  Payment.  211 

and  a  right  to  complete  a  well  then  in  the  course  of  con- 
struction, the  lessor  cannot  recover  the  money  due  for 
non-completion  of  the  well  within  the  time  specified  in  the 
lease  where  a  forfeiture  is  declared. *  And  where  a  for- 
feiture is  declared,  no  rent  or  damages  can  be  recovered 
for  failure  to  drill  on  the  premises.8  So  where  the  gas 
well  was  destroyed  by  being  flooded  with  salt  water  with- 
out any  fault  on  the  part  of  the  lessee,  the  lessee  will  be 
relieved  from  the  payment  of  future  royalties  though 
the  lease  does  not  so  provide,  as  such  a  provision  is  im- 
plied;3 and  where  the  lease  provides  that  it  may  be  sur- 
rendered and  liabilities  thereunder  to  cease,  an  actual 
surrender  is  not  necessary,  if  the  acts  of  the  parties  are 
such  to  clearly  show  that  the  lease  was  surrendered;4 
and  such  a  surrender  may  be  made  by  parol.5  But  when 
wells  are  bored  on  the  premises  and  produce  gas,  and 
the  lessee  has  the  exclusive  privilege  and  the  lessor  was 
to  receive  so  much  per  well  as  long  as  gas  is  sold  off  the 
premises,  the  lessee  must  show  why  gas  is  not  sold  to 
escape  liability,  and  the  excuse  must  be  a  legal  one.* 
But  if  a  well  ceases  to  produce  gas  and  the  les.see  was 
to  pay  only  so  long  as  gas  was  produced  from  the  well, 
if  the  well  ceases  to  produce  during  the  year  the  lessee 
is  liable  only  for  part  of  the  year.7  The  lessee  is  liable 
to  pay  a  rent,  where  the  well  was  not  put  down,  in  the 
time  specified  where  the  lessee  had  a  right  to  surrender 
the  lease  and  did  not  do  so,8  and  when  the  surrender 
was  made  the  lessee  is  liable  for  all  rents  due  at  the 
time  of  the  surrender;9  but  because  the  lessee  paid  two 

1.  Wolf  vs.  Guffey,  161  Pa.,  276;  28  AtL,  1117. 

2.  Wilson  vs.  Goldstein,  152  Pa.,  524;  25  Atl.,  493. 

3.  McConnell  vs.  Lawrence  Nat.  Gas  Co.,  30  Pitts.  L.  J.  N.  S.. 

281. 

4.  Hooks  vs.  Forst,  165  Pa.,  238;  30  Atl.,  846. 

5.  Cochran  vs.  Shenanago  Nat.  Gas  Co.,  23  Pitts.,  L.  J.N.  S.,82. 

6.  lams  vs.  Carnegie  Nat.  Gas  Co.,  194  Pa.,  72;  45  Atl.,  54. 

7.  Moon  vs.  Pittsb.  Plate  Glass  Co.,  24  Ind.  App.,  34;  56N.E., 

108. 

8.  Roberts  vs.  Bettman,  45  W.  Va.,  143;  30  S.  E.,  95. 

9.  Bettman  vs.  Shadle,  22  Ind.  App.,  542;  53  N.  E.,  602;  Smiley 

vs.  Western  Penn.  Nat.  Gas  Co.,  138  Pa.,  576;  21  Atl.,  1. 


212  Liability  of  Assignee. 

installments  when  not  liable,  the  lessee  is  not  estopped 
to  set  up  the  invalidity  of  the  lease  when  sued  on  the 
next  installment;1  and  the  lessee  is  liable  to  the  owner 
of  a  coal  mine  on  an  agreement  to  pay  so  much  for  a  well 
then  being-  drilled,  and  an  additional  sum  if  other  wells, 
though  the  lease  was  assigned  and  the  additional  wells 
were  drilled  by  the  assignee  when  the  coal  company  did 
not  assent  to  the  assignment.  * 

SEC.  9.  ASSIGNMENT  OF  LEASE — RELATION  OF  THE 
PARTIES — EXPRESS  AGREEMENT  IN  THE  LEASE  TO  PER- 
FORM ITS  COVENANTS  WILL  MAKE  ASSIGNEE  LIABLE. — 
The  assignment  of  a  lease  and  the  acceptance  of  such 
lease  by  the  assignee  creates  no  privity  of  contract  be- 
tween the  assignee  and  the  lessor;  and  the  liability  of 
the  assignee  exists  between  the  assignee  and  the  lessor 
only  on  the  ground  of  privity  of  estate. 3  But  where  the 
assignment  of  the  lease  provides  that  the  assignee  shall 
perform  all  the  covenants  and  agreements  contained  in 
the  lease,  and  the  assignee  accepted  the  lease  with  such 
a  provision  in  the  assignment,  the  assignee  is  liable  to 
the  lessor  for  all  the  provisions  contained  in  the  lease, 
whether  they  run  with  the  land  or  not;4  and  where  the 
assignee  agreed  under  seal  to  perform  the  covenants  in 
the  lease  the  assignee  is  liable  to  the  lessor  to  pay  rent 
after  parting  with  the  lease  by  assigning  the  same  to  a 
third  person,  and  the  lessor  recognizes  such  subsequent 
assignee  or  his  tenant;5  and,  where  the  assignment  was 
made  by  a  separate  instrument,  the  assignee  becomes 
liable  for  the  rent  for  the  whole  term  under  an  agreement 
in  the  assignment  to  perform  all  the  covenants  in  the 
lease.6 

1.  Diamond  Plate  Glass  Co.  vs.  Tunnell,  22  Ind.  App.,  132;  52 

N.  E.,  168. 

2.  Pitts.  Con.  Coal  Co.  vs.  Greenlee,  164  Pa.,  549;  52  N.  E.,  168. 

3.  Congregational  Soc.  vs.  Rex.,  --  Vt.,  — ;  17  Atl.,  719;  Sex- 

ton vs.  Chicago  Storage  Co.,  129  111.,  327. 

4.  Woodland  Oil  Co.  vs.  Crawford,  55  Ohio,  161;  44  N.  E.,  1093. 

5.  Post  vs.  Jackson,  17  Johns,  239. 

6.  Mortmean  vs.  Steele,  14  Wis.,  272. 


Privity  of  Estate  Binds  Assignee  to  Pay  Eent.        213 

SEC.  10.  •  LIABILITY  OF  ASSIGNEE  is  BASED  ON  PRIV- 
ITY OF  ESTATE— No  LIABILITY  FOR  COVENANTS  BROKEN 
BEFORE  OR  AFTER  THE  ASSIGNEE  PARTS  WITH  THE 
LEASE — MUST  PERFORM  COVENANTS  WHICH  RUN  WITH 
THE  LAND. — Where  there  is  an  assignment  of  the  lease 
by  lessee,  and  the  assignee  does  not  assume  to  perform 
any  obligation  or  covenant  contained  in  the  lease,  the 
liability  of  the  assignee  depends  solely  on  the  ground  of 
privity  of  estate  between  the  lessor  and  assignee.  *  The 
liability  of  the  assignee  of  the  lease  in  such  a  case  con- 
tinues only  while  privity  of  estate  exists  between  the 
assignee  and  the  lessor;  consequently,  for  covenants 
broken  before  the  assignee  obtained  the  estate,  or  after 
parting  with  it,  the  assignee  is  not  liable.2  Where  the 
assignee  holds  the  lease  as  assignee  and  exclusive  owner, 
such  assignee  must  perform  all  the  covenants  which  run 
with  the  land,  such  as  the  payment  of  rent  or  royalty  or 
sinking  wells;3  and  must  account  to  the  lessor  for  the 
proceeds  for  the  sale  of  gas,  which  was  due  the  lessor  as. 
a  royalty,  and  received  while  the  privity  of  estate  ex- 
isted.4 Where  the  interest  of  the  lessee  was  bought  at 
a  judicial  sale,  the  purchaser  is  liable  to  perform  the 
covenants  of  the  lease  which  run  with  the  land,  as  the 
purchaser  is  regarded  in  law  as  an  assignee;5  and  where 
a  half  interest  is  assigned,  the  lessee  and  assignee  are 
jointly  liable;6  and  when  the  lessee  covenanted  to  sink  a 
well,  the  assignee,  is  liable  on  the  covenant,  where  the 
breach  occurred,  while  assignee  held  the  lease,7  and  is 
liable  while  the  estate  is  held,  though  there  is  a  cove- 
nant against  assignment. 8 

1.  Bradford  Oil  Co.  vs.  Blair,  113  Pa.,  83;  Edmonds  vs.  Moun- 

sey,  15  Ind.  App.,  599;  44  N.  E.,  196. 

2.  Washington  Natural  Gas  Co.  vs.  Johnson,  123  Pa.  St.,  576;  16 

Atl.,  799;  Bradford  Oil  Co.  vs.  Blair,  113  Pa.  St.,  83. 

3.  Brackenridge  vs.  Parratt,  15  Ind.  App.,  411;  44  N.  E.,  66. 

4.  Akin  vs.  Marshall  Oil  Co.,  188  Pa.,  614;  41  Atl.,  748. 

5.  Aderhold  vs.  Oil  Supply  Co.,  158  Pa.,  401;  28  Atl.,  22. 

6.  Jackson  vs.  O'Hara,  183  Pa.  St.,  233;  38  Atl.,  624. 

7.  Watt  vs.  Equitable  Gas  Co.,  8  Super  Ct.  (Pa.),  618;  29  Pittsb. 

L.  J.  U.  S.,  221. 

8.  Oil  Creek  etc.  vs.  Stanton  Oil  Co.,  23  Pa.  Co.  Ct.,  153;  30 

Pittsb.  L.  J.N.  S.,286. 


214       Assumption  to  Perform  Covenants  by  Assignee. 

SEC.  11.  LIABILITY  TO  LESSOR  ON  ASSUMPTION  TO 
PERFORM  THE  COVENANT  IN  THE  LEASE — An  assignee 
of  the  lease  is  liable  to  the  lessor  for  the  payment  of 
past  due  royalties,  where  the  assignment  of  the  lease 
provided  that  it  was  subject  to  the  "terms,  conditions 
and  reservations  of  said  leases  or  grants  respectively, 
and  under  and  subject  to  the  rents,  royalties  and  cove- 
nants in  said  lease  and  conveyances  respectively  reserved 
and  contained,  on  the  part  of  the  grantees,  or  lessees 
thereof,  to  be  paid,  kept,  done  and  performed;"  and 
though  the  lease  provided  the  non-payment  of  the  royal- 
ties would  make  the  lease  void  and  there  was  a  breach 
before  the  assignment  of  the  lease. *  And  where  the  oil 
wells  were  not  sunk,  or  the  land  developed  by  the  lessor 
within  the  time  specified  in  the  lease,  and  the  time  had 
expired  before  the  lease  was  assigned,  the  assignee  is 
liable  for  the  damages  due  the  lessor  under  the  cove- 
nants in  the  assignment  as  above  stated.2 

SEC.  12.  LIABILITY  OF  THE  ASSIGNEE  TO  THE  LESSOR 
DEPENDS  ON  THE  PRIVITY  OF  ESTATE. — By  the  as- 
signment of  a  lease  a  beneficial  use  or  a  right  to  the 
enjoyment  of  such  a  use  is  conferred  upon  the  assignee, 
so  covenants  in  the  lease  to  pay  rent,  to  keep  the  prem- 
ises in  good  repair,  and  to  cultivate  the  land  or  develop 
the  land,  are  covenants  annexed  and  attached  to  the 
estate  of  the  lessee,  and  when  the  lease  is  assigned  and 
accepted  by  the  assignee  they  pass  as  burdens  on  the 
estate  coming  to  the  assignee,  and  must  be  performed 
while  the  estate  rests  in  the  assignee.3  The  liability, 
however,  to  perform  covenants  continues  only  so  long 
as  the  privity  of  estate  exists  between  the  lessor  and 
assignee,  and  an  assignment  of  the  lease  will  put  an  end 
to  the  privity  of  estate,  and  this  is  true,  no  matter  to 
whom  the  assignmet  is  made,  and  the  assignee  will  be  no 

1.  Woodland  Oil  Co.  vs.  Crawford,  55  Ohio,  166;  44  N.E.,  1093. 

2.  Woodland  Oil  Co.  vs.  Crawford,  55  Ohio,  166;  44  N.E.,  1093. 

3.  Babcock  vs.  Scoville,  56  111.,  461;  Pingry  vs.  Watkins,  17  Vt., 

379;  GKddings  vs.  Felker,  70  Tex.,  176;  7  S.W.,694;  Thomas 
vs.  Connell,  5  Pa.,  13. 


Liability  of  Assignee  to  Lessee.  215 

longer  liable  for  any  covenants  thereafter;1  but  the  as- 
signee is  liable  for  all  covenants  broken  while  the  privity 
of  estate  existed;2  and  is  liable  if  the  assignee  remained 
on  the  premises  up  to  the  day  the  rent  was  due,  although 
the  assignment  was  made  some  days  before.3  The  as- 
signee of  an  oil  and  gas  lease  is  not  liable  for  a  breach _ 
of  a  covenant  to  sink  a  well  by  a  certain  time,  when  the 
time  by  which  the  well  was  to  be  put  down  did  not  expire 
until  the  lease  was  reassigned. 4 

SEC.  13.  LIABILITY  OF  ASSIGNEE  to  LESSEE. — The 
assignee  is  liable  to  the  lessee,  when  the  assignment  was 
made  subject  to  the  rent  reserved  in  a  lease,  and  the  as- 
signee failed  to  pay  the  lessor  and  the  lessee  paid  the 
rent  to  the  lessor.5  So  where  the  assignee  assigns  the 
lease,  the  remote  assignee  is  liable  for  a  breach  of  any 
covenant  which  runs  with  the  land,  while  the  term  was 
held  by  such  remote  assignee.6  And  where  there  was  a 
stipulation  in  the  assignment  of  the  lease  that  a  well 
would  be  drilled  by  the  assignee,  the  assignee  is  liable 
for  the  breach  to  the  lessee  for  not  sinking  the  well; T 
but  where  the  lessee  receive  a  certain  cash  payment  for 
the  assignment  of  the  lease  and  was  to  receive  an  addi- 
tional sum,  when  a  producing  well  was  found  on  the  land 
covered  by  the  lease,  the  remote  assignee  is  not  liable  to 
pay  the  additional  sum,  as  the  payment  of  the  additional 
sum  is  personal  between  the  lessee  and  the  first  as- 
signee.8 

1.  Durand  vs.  Curtis,  57  N.  Y.,  11;  Baily  vs.  Richardson,  66  Cal., 

421;  Borlands  App.,  66  Pa.,  470;  Johnson  vs.  Sherman,  15 
Cal.,  287;  Anslow  vs.  Carrie,  2  Madd.,  330. 

2.  Young  vs.  Preyster,  3  Bosw.,  308. 

3.  Negley  vs.  Morgan,  46  Pa.,  281. 

4.  Washington  Nat.  Gas  Co.  vs.  Johnson,  123  Pa.,  576;  16  Atl., 

799;  Watts  vs.  Equitable  Gas  Co.,  8  Pa.  Super.   Ct.,  618; 
Bradford  Oil  Co.  vs.  Blair,  113  Pa.,  83. 

5.  Steward  vs.  Walverridge,  9  Beng.,  60. 

6.  Brinkley  vs.  Hambelton,  67  Med.,  169;  8  Atl.,  904. 

7.  Knapp  vs.  Bright,  186  Pa.,  181;  40  Atl.,  414. 

8.  Fisher  vs.  Guffy,  193  Pa.,  393;  44  Atl.,  459. 


216  Assignment  of  Rent  or  Lease. 

SEC.  14.  ASSIGNMENTS  OF  ROYALTIES — ASSIGNMENT 
OF  THE  LEASE — SALE  OF  THE  LAND  PASSES  THE  ROYAL- 
TIES TO  BECOME  DUE. — The  lessor  has  a  right  to  dispose 
of  the  lease  made  to  the  lessee.1  So  where  the  lessor 
assigns  all  his  interest  in  the  lease,  the  assignee  may 
recover  damages  accrued  at  the  time  of  the  assignment 
for  any  breach  of  the  covenant  while  the  lease  was  held 
by  the  lessor;2  and  where  the  lessor  disposes  of  the  land 
and  the  royalties  to  accrue  on  the  lease  are  not  reserved, 
the  royalties  pass  with  the  land  and  are  payable  to  the 
grantee  of  the  lessor.3  But  where  a  lessor  made  a  lease 
of  the  oil  and  gas  and  reserved  one-eighth  of  the  oil  and 
gas  as  a  royalty,  and  then  made  a  deed  of  gift  of  the  land 
to  his  children  and  reserved  a  life  estate  in  the  land,  the 
royalty  reserved  did  not  pass  to  the  children.4  So  where 
the  husband  and  wife  convey  lands  and  the  deed  is  made 
subject  to  a  reservation  of  one-eighth  of  all  the  petro- 
leum found  in  the  land  to  the  grantors,  and  the  grantee, 
in  the  deed,  leases  the  land  and  reserves  one-eighth  of 
the  petroleum,  the  reservation  of  one-eighth  of  the  pe- 
troleum is  a  reservation  of  one-eighth  of  the  seven-eighths 
which  were  vested  in  the  lessor  under  the  deed  to  him; 
and  the  one-eighth  remained  in  the  husband  and  wife  by 
the  force  of  the  deed  made  by  them.5  So  where  the  tes- 
tator leased  the  land  for  a  period  of  years  and  the  lease 
provided  that  a  certain  royalty  was  to  be  paid  for  all  the 
oil  or  gas  produced,  the  royalty  reserved  will  go  to  the 
administrator  or  executor  and  will  not  go  to  the  person 
who  receives  the  land.6  Under  a  devise  of  lands  by  a 
testator,  where  there  was  an  outstanding  lease,  at  the 
time  of  the  devise,  and  active  operations  were  prosecuted 
on  one  of  the  tracts  of  land  devised,  and  oil  was  being 

1.  Indianapolis  Nat.  Gas    Co.  vs.  Pierce,  25  Ind.  App.,  116;  56 

N.  E.,  137. 

2.  Indianapolis  Nat.  Gas  Co.  vs.  Pierce,  56  N.  E.,  137. 

3.  Chandler  vs.  Pittsb.  Plate  Glass  Co.,  20  Ind.  App.,  165;  50 

N.  E.,  400. 

4.  Koen  vs.  Bartlett,  41  W.Va.,  559;  23  S.E.,  664;  31  L.R.A.,  121. 

5.  Harness  vs.  Cobb  —  W.  Va.,  — ;  38  S.  E.,  662. 

6.  Brunots  Est.,  29  Pitts.  L.  J.  N.  S.  (Pa.),  105. 


Devise  of  Land  Leased.  217 

produced,  the  devisees  will  share  in  proportion  to  the 
number  of  acres  of  land  devised  to  each  in  all  the  royalty 
derived  from  the  lease  in  force  at  the  time  of  the  death 
of  the  lessor;1  but  the  devisee  is  entitled  to  have  the 
value  of  the  rental  for  the  land  on  which  the  oil  is  being- 
produced,  deducted  from  the  royalties  before  a  division^ 
is  made.2 

In  Wettengel  v.Gormley,  160  Pa.  St.,  559;  28  Atl.,  934, 
the  lease  contained  a  provision  that,  "It  is  understood 
between  the  parties  to  this  agreement  that  all  the  con- 
ditions between  the  parties  hereto  shall  extend  to  their 
heirs,  executors  and  assigns,"  and  at  the  time  of  the 
death  of  the  lessor  the  lease  had  yet  twelve  years  to  run 
before  the  time  would  expire  and  the  land  devised  was 
made  up  of  three  farms  containing-  600  acres  of  land  and 
to  each  of  the  children,  three  in  number,  he  devised  a 
farm  and  at  the  time  of  his  death  and  when  the  contro- 
versy arose  active  operations  were  pursued  on  one  farm 
and  oil  was  produced  and  no  operations  were  begun  on 
the  other  farms,  so  the  child  who  received  the  farm  on 
which  the  oil  was  being  produced  claimed  all  the  royal- 
ties which  was  one-eighth  reserved  in  the  lease.  The 
court  in  deciding  the  case  held  that  the  disposition  of 
oil  and  gas  differed  from  the  disposition  of  solid  miner- 
als because  oil  and  gas  were  fluid  and  that  operations  on 
one  tract  of  land  would  have  the  effect  of  drawing  the 
oil  and  gas  from  distant  tracts  of  land,  and  although  no 
operations  were  carried  on  in  the  other  two  tracts  of 
land  yet  the  wells  from  which  oil  was  produced  were  on 
an  adjoining  tract  and  the  effect  would  be  to  draw  the 
oil  from  the  other  farms  so  all  must  share  in  the  royalty 
in  the  proportion  his  land  bears  to  the  whole  tract. 

In  a  case  where  the  owner  of  land  executed  an  oil 
lease  for  a  term  of  years  and  then  died  leaving  a  widow, 
the  widow  is  entitled  to  share  in  the  royalty  derived 
from  the  land  leased  by  her  husband  and  such  a  royalty 
is  not  a  part  of  the  corpus  of  the  estate  but  an  income.* 

1.  Wettengel  vs.  Gormly,  160  Pa.  St.,  559;  28  Atl.,  934. 

2.  Wettengel  vs.  Gormly,  184  Pa.  St.,  354;  39  Atl.,  57. 

3.  Woodbnrns  Est.,  138  Pa.,  606;  21  Atl.,  16. 


218  Royalties  Wiere  Land  is  Drained  TJirough  Other  Land. 

In  case  of  joint  tenants  or  tenants  in  common  each 
tenant  is  entitled  to  his  share  of  the  rent  in  proportion 
to  the  land  owned  by  such  tenant1  but  the  payment  to 
one  joint  lessor  will  release  the  lessee  from  further  pay- 
ment when  notice  is  not  given  to  the  lessee  not  to  pay 
the  whole  rent  to  him.2 

SEC.  15.  ROYALTIES  WHERE  THE  LAND  LEASED  is 
DRAINED  THROUGH  WELLS  ON  OTHER  LANDS. — Where  a 
lessee  acquired  a  lease  on  a  tract  of  land  and  the  lease 
provided  that  the  lessor  was  to  receive  one-eighth  of  all 
the  oil  produced  on  the  premises  as  a  royalty  and  the 
lessee  had  also  a  lease  on  the  lands  adjoining  the  land  of 
the  lessor  and  the  lessee  put  down  wells  on  the  lands  so 
adjoining"  and  drained  the  lands  of  the  lessor,  the  lessor 
was  held  entitled  to  royalties  as  was  provided  in  the 
lease  and  could  not  be  defeated  by  draining  the  land  by 
wells  on  adjoining  lands.8  The  lessee  must  pay  the 
lessor  for  the  time  the  latter's  lease  was  in  force  a 
royalty  in  proportion  of  the  lessor's  land  which  was 
drained  to  that  of  the  lessee's  land  drained  through  the 
wells  in  the  latter's  lands.4 

SEC.  16.  TENANT  CANNOT  DENY  TITLE  OF  LESSOR. 
— The  lessee  or  any  person  claiming  under  him,  cannot 
deny  the  title  of  the  lessor  while  the  lessee,  or  his  as- 
signee, holds  possession  of  the  estate  acquired  under  a 
lease.  Where  the  lessee  or  assignee  claims  title  hostile 
to  the  lessor,  the  lease  is  thereby  forfeited;6  but  the 
lessee  may  show  that  the  lessor  has  disposed  of  his  es- 
tate and  title  to  the  land,  or  was  deprived  of  the  same 

1.  Swint  vs.  McCalamont  Oil  Co.,  184  Pa.,  202;  38  Atl.,  1021; 

Higgins  vs.  Cal.,  Ref.  &  A.  Co.,  109  Cal.,304;  41  Pac., 
1087. 

2.  Swint  vs.  McCalamont  Oil  Co.,  184  Pa.,  202;  38  Atl.,  1021. 

3.  Kleppner  vs.  Lemon,  176  Pa.  St.,  502;  35  Atl.,  109. 

4.  Kleppner  vs.  Limon,  197  Pa.  St..  430;  47  Atl.,  353. 

5.  Tobin  vs.  Young,  124  Ind.,   507;  24  N.   E.,  121;  Byrnes  vs. 

Douglas,  23  Nevada,  83;  42  Pac.,  798;  Goodman  vs.  Mal- 
colm, 5  Kan.  App.,  285;  48  Pac.,  439;  Willison  vs.  Wai- 
kins,  3  Pet.,  43;  Walden  vs.  Rodley,  14  Pet.,  156;  Zeller 
vs.  Eckert,  4  How.,  289. 


Tenant  Cannot  Deny  Title.  219 

by  an  act  of  the  law.  *  And  where  the  dispute  was  an 
honest  one,  as  where  the  owners  of  a  corporate  stock  of 
the  lessee  company  voted  to  buy  the  land  leased,  and 
the  company  was  under  the  belief  the  purchase  was  made, 
but  the  purchase  was  void  because  the  act  of  the  stock- 
holders was  not  ratified  by  the  directors  of  the  company, 
the  lease  is  not  forfeited  by  the  corporation  claiming 
title  against  the  lessor  though  the  claim  was  void.8  The 
lessee,  subject  to  the  exceptions  above  stated,  must  first 
surrender  the  possession  acquired  under  the  lease  before 
the  title  of  the  lessor  can  be  called  in  question8  and  this 
is  true,  though  the  title  is  in  the  lessee.4 

1.  Corrigan  vs.  Chicago,  144  111.,  537;  Lodge  vs.  Martin,  31  App. 

Div.  (N.  Y.),13. 

2.  Poterie  Gas  Co.  vs.  Poterie,  179  Pa.,  68;  36  Atl.,  232. 

3.  Nehr  vs.  Krewsberg,  187  Pa.,  53;  40  Atl.,  810. 

4.  Mackin   vs.  Haven,  187  111.,  502;  Thayer  vs.  Society,  20  Pa. 

St.,  60. 


Reservation  and  Location  of  Oil  Claims. 


CHAPTER  XV. 

SECTION  1.  RESERVATIONS  AND  RESTRICTIONS — 
WHEN  A  RESTRICTION— RESERVATION  BY  IMPLICATION- 
CONVEYANCE  OF  MINERALS  DOES  NOT  INCLUDE  PETRO- 
LEUM— CONTRARY  DOCTRINE. — When  land  is  conveyed 
or  leased  for  the  production  of  oil  or  gas  the  owner  very 
often  inserts  in  the  instrument  of  conveyance  exceptions 
and  reservations,  and  the  courts  are  calted  upon  to  con- 
strue the  instrument  as  to  whether  the  exception  or  res- 
ervation reserves  the  oil  and  gas  to  the  owner  in  the 
tract  reserved,  or  whether  the  exception  or  reservation 
only  restricts  the  grantee  in  drilling  on  the  particular 
tract.  Thus  where  the  instrument  reserved  out  of  the 
whole  tract  ten  acres,  "upon  no  wells  shall  be  drilled 
without  the  written  consent  of  the  party  of  the  first 
part,"  the  court,  in  giving  construction  to  the  instru- 
ment, held  that  the  lessor  reserved  no  interest  to  the 
minerals  in  the  land,  and  the  whole  title  passed  to  the 
grantee  with  the  restriction  that  the  lessee  could  sink 
no  gas  or  oil  wells  on  the  land  reserved  without  the 
written  consent  of  the  grantor.1  But  when  a  lease 
granted  to  the  lessee,  and  his  heirs  and  assigns  forever, 
"all  the  coal  of  every  variety,  all  the  iron  ore,  fine 
clay  and  other  valuable  minerals,''  the  deed  did  not 
convey  any  title  to  the  petroleum  or  gas  to  the  lessee. 
The  words  "other  minerals"  or  "other  valuable  miner- 
als" taken  in  the  broadest  sense  would  include  petroleum 
oil,  but  if  the  parties  did  not  intend  that  the  title  to  pe- 
troleum and  gas  should  pass,  the  title  remains  in  the 

1.  Brown  vs.  Spilman,  155  U.  S.,  665;  Reversing,  Spilman  vs. 
Brown,  45  Fed.  R.  (C.  C.  W.  D.  W.  Va.),  291. 


Reservation  and  Restriction.  221 

owner  of  the  fee.1  So  where  the  grantor  in  his  deed  of 
conveyance  reserved  "all  the  minerals,"  the  reservation 
did  not  include  the  petroleum.  The  word  minerals,  in 
its  broadest  sense,  would  include  all  inorganic  substance, 
such  as  clay,  rock,  sand,  or  anything  dug-  from  the  mines, 
so  that  the  reservation  would  be  as  broad  as  the  grant, 
and  would  be  void;  so  the  court,  in  determining  the  mean- 
ing of  the  term  "all  minerals,"  concluded  that  the  parties 
intended  to  include  only  such  minerals  as  those  which 
are  classed  to  be  minerals  by  the  people  in  general  and 
this  is  more  especially  true,  when  petroleum  was  not 
known  to  exist  on  the  land  at  the  time  of  the  convey- 
ance.8 A  directly  opposite  conclusion  was  arrived  at  by 
another  court  under  a  reservation  of  "All  mines,  miner- 
als and  metals  in  and  under  the  land."3  The  court  dis- 
approved of  the  doctrine  of  the  Pennsylvania  court,  and 
said  that  "the  great  weight  of  authority  is  not  only  op- 
posed to  that  case,  but  seems  to  us  to  proceed  upon  false 
principles.  The  ground  of  that  decision,  as  stated  in  the 
opinion,  is  that  by  the  bulk  of  mankind  other  things  are 
not  considered  as  minerals  except  such  things  as  be  of  a 
metallic  nature,  such  as  gold,  silver,  copper  and  lead," 
etc. ;  and  that  it  was  not  true,  that  in  popular  estimation, 
petroleum  is  not  regarded  as  a  mineral  substance  any 
more  than  is  animal  or  vegetable  oil,  and  said  further 
"that  the  true  meaning  of  the  word  'mineral, '  as  well  as 
the  meaning  among  the  bulk  of  mankind,  must  be  deter- 
mined from  the  dictionaries  and  other  similar  authori- 
ties; and  that  the  bulk  of  mankind  could  not  be  regarded 
as  holding  that  the  word  mineral  applies  only  to  metals.  " 
The  Pennsylvania  case  finds  support  also  in  other  states 
where  it  was  held  that  a  reservation  of  minerals  did  not 
include  minerals  not  known  to  exist. 4  There  is  no  ques- 
tion but  that  petroleum  is  a  mineral,  but  it  seems, 

1.  Detlor  vs.  Holland,  57  Ohio  St.,  492;  49  N.E.,  690. 

2.  Dunham  vs.  Kirkpatrick,  101  Pa.,  43;  47  Am.  Rep.,  696. 

3.  Murray  vs.  Ailard,  100  Tenn.,  100;  43  S.  W.,  355;  39  L.  R.  A., 

249. 

4.  Detlor  vs.  Holland,  57  Ohio  St.,  492;  Deer  Lake  Co.  vs.  Mich. 

Land  &  I.  Co.,  89  Mich.,  180;  50  N.  W.,  807. 


222  Eight  of  Abutting  Oivners  to  Minerals. 

whether  the  parties  intended  to  include  petroleum  as 
well  as  metallic  substances,  is  the  question  which  caused 
the  courts  to  hold  opposite  views.  Where  the  owner  re- 
serves the  oil  and  gas  from  the  conveyance  such  owner 
retains  an  interest  in  the  land,  and  such  an  interest  to 
which  a  judgment  lien  will  attach,  and  such  an  interest 
may  be  sold  on  execution.1 

SEC.  2.  RIGHTS  OF  ABUTTING  OWNERS  WHERE  THE 
FEE  IN  THE  STREETS  AND  HIGHWAYS  ARE  IN  THE  PUBLIC 
IN  TRUST. — When  the  fee  of  the  streets  and  highways  is 
held  in  trust  by  the  state  for  the  benefit  of  the  public, 
the  owner  of  the  abutting  property  has  no  interest  in  the 
mineral  found  beneath  the  surface,  so  the  proper  officers 
may  dispose  of  the  oil  and  gas  rights  in  the  public  high- 
ways and  streets.2  In  similar  cases,  where  a  coal  com- 
pany took  the  coal  which  underlaid  the  streets  of  a  city, 
and  the  legal  title  of  the  streets  is  in  the  city  for  the 
benefit  of  the  public,  the  city  .was  held  to  be  authorized 
to  sue  the  coal  company  and  recover  damages  for  the 
wrongful  taking  of  the  coal,  without  the  consent  of  the 
city;  but  the  court  declined  to  decide  whether  the  city 
had  a  right  to  sell  the  coal,  as  the  question  was  not  prop- 
erly presented  by  the  pleadings.3  So  where  the  making 
of  a  plat  by  the  owner  of  the  land,  and  the  filing  of  the 
plat  have  the  effect  of  granting  the  fee  in  the  streets  to 
the  city  in  trust  for  the  public,  an  owner  of  the  abutting 
property  has  no  right  to  take  the  coal  from  beneath  the 
streets  and  would  be  liable  in  trespass.4  And  where  the 
former  owner  of  the  streets  leased  them  to  a  third  per- 
son for  the  purpose  of  taking  the  coal  and  the  coal  was 
mined  and  a  royalty  paid  to  such  owner,  the  city  was 
held  to  be  the  absolute  owner  of  the  street  by  dedication 
by  the  former  owner,  and  the  city  could  waive  the  tort 
and  sue  the  owner  or  his  heirs  for  the  royalty  received.8 

1.  First  National  Bank  vs.  Dow,  41  Hun.,  13. 

2.  Ontario  Nat.  Gas  Co.  vs.  Gasfield,  18  Ont.  App.,  626. 

3.  Union  Coal  Co.vs.  Cityof  La  Salle,136  111., 119;  12  L.R.A.,326. 

4.  Des  Moines  vs.  Hall,  24 la.,  234. 

5.  Hawesville  vs.  Hawes,  6  Bush.,  232. 


When  Owner  Abutting  Street  May  Take  Minerals.      223 

Where  the  fee  is  thus  vested  in  the  public  the  only  rights 
an  abutting*  property  owner  has  to  the  street  is  to  have 
it  kept  open  and  free  from  obstruction  for  the  purpose 
of  using  the  street  to  reach  his  lots;  and  such  abutting 
owner's  title  extends  only  to  the  line  of  the  street  and 
has  no  right  to  take  the  minerals  from  beneath  the  sur- 
face of  the  street  in  front  of  his  lot.  The  fee  in  the  city, 
however,  is  a  determinable  or  base  fee  and  when  the 
street  is  vacated  and  abandoned,  the  fee  returns  to  the 
person  who  dedicated  it  to  the  public. l 

SEC.  3.  THE  MINERALS  ARE  THE  PROPERTY  OF  AN 
ABUTTING  OWNER  WHEN  THE  PUBLIC  ACQUIRES  BUT  THE 
FEE  FOR  THE  PURPOSE  OF  TRAVEL — THE  PUBLIC  HAS 
NO  TITLE  TO  THE  MINERALS  WHERE  ONLY  AN  EASEMENT 
TO  TRAVEL  is  ACQUIRED — THE  OWNER  MAY  TAKE  THE 
MINERALS  IN  SUCH  CASE. — A  statute  which  provided 
that  maps  and  plats  of  cities  and  towns  made,  acknowl- 
edged and  recorded  by  the  owner  of  any  land  of  any  city, 
town  or  village  or  addition  to  such  city  town  or  village, 
''shall  be  sufficient  to  vest  the  fee  to  such  parcels  of  land 
as  therein  named,  described  or  indicated,  for  public  use 
in  such  city,  town  or  village,  when  incorporated,  in  trust 
for  the  uses  therein  named,  expressed  or  intended  and 
for  no  other  use  or  purpose,"  gives  the  city  a  fee  in  the 
street  for  street  purposes  only  and  every  other  beneficial 
use  remains  in  the  dedicator  and  passes  to  the  abutting 
owner  on  the  street  when  a  sale  is  made,  and  such  owners 
may  extract  the  minerals  from  the  streets;2  and  this  is 
the  rule  laid  down  in  other  states  under  a  statutory  dedi- 
cation.3 So  where  the  fee  remains  in  the  dedicator,  and 
passes  on  sale  of  the  property  to  the  purchaser,  the  pub- 
lic acquires  but  a  mere  easement  to  travel  over  the  land 
used  for  streets  and  highways,  and  the  title  to  the  min- 

1.  Matthiesen  &  Hegeler  Zinc  Co.  vs.  City  of  La  Salle,  117  111., 

411. 

2.  Snoddy  vs.  Bolen,  122  Mo.,  479;  25  S.W.,  935. 

3.  Kimball  vs.  Kenosha,  4  Wis.,  321;  Milwaukee  vs.  Milwaukee 

&  B.  R.  Co.,  7  Wis.,  76;  Schurmeier  vs.  St.  Paul  &  P.  Ry., 
10  Minn.,  82;  88  Am.  Dec.,  59. 


224  Reservation  of  Mineral. 

erals  remains  in  the  abutting-  owner1  because  so  far  as 
ownership  is  involved,  the  title  is  the  same  as  if  no  road 
or  street  was  on  the  land.  *  The  owner  of  the  fee  has  a 
right  to  the  use  of  a  spring  on  the  highway  and  the  pub- 
lic has  no  right  thereto,3  and  such  an  owner  may  remove 
the  minerals,4  and  the  stone  and  gravel,6  and  the  only 
restriction  that  the  law  imposes  on  the  owner  is  that 
such  owner  shall  not  do  anything  which  will  interfere 
with  the  public  in  the  use  of  the  highway  for  travel.6  A 
city  is  liable  for  the  value  of  stone  taken  from  a  street 
by  a  person  who  was  under  a  contract  with  a  city  to 
build  a  sewer  and  part  of  the  stone  which  was  removed 
was  not  necessary  to  the  construction  of  the  sewer  and 
the  contractor  received  the  stone  as  part  of  the  compen- 
sation for  the  building  of  the  sewer,  but  that  part  of  the 
stone  which  was  necessary  to  remove  for  the  construc- 
tion of  the  sewer  the  city  was  not  liable. 7  So  where  a 
contractor  digs  below  the  street  grade  and  removes 
stone,  sand  and  gravel,  the  owner  can  maintain  an  ac- 
tion for  the  value  of  the  materials  taken.8  It  is  well 
settled  from  these  authorities  that  where  the  public  has 
only  an  easement,  the  owner  retains  title  to  the  lands, 
subject  to  the  easement. 

SEC.  4.  THE  OWNER  OF  LAND,  WHEN  DEDICATING 
THE  STREETS  TO  THE  PUBLIC  MAY  RESERVE  THE  MIN- 
ERALS IN  THE  STREET,  THOUGH  IP  NO  RESERVATION  WAS 

1.  Good  title  vs.  Alker,  1  Burr,  133;  Lyman  vs.  Arnold,  5  Mason, 

198. 

2.  Davaston  vs.  Payne,  2  H.  Bl.,  531;  Reg.  vs.  Pratt,  4  El.  and 

Bl.,  868;  Reed  vs.  Leeds,  19  Conn.,  188;  Perley  vs.  Chand- 
ler, 6  Mass.,  464. 

3.  Old  Town  vs.  Dooley,  81  111.,  256. 

4.  Dubuquevs.  Benson,  23  la.,  248. 

5.  Robert  vs.  Sadler,  104  N.  Y.,  229;  10  N.E.,  424. 

6.  Robert  vs.  Sadler,  104  N.  Y.,  229;  Williams  vs.  Kennedy,  14 

Barb.,  629;  Perley  vs.  Chandler,  6  Mass.,  456;  Winchester 
vs.  Capron,  63  N.  H.,  605;  Old  Town  vs.  Dooley,  81  111., 
256. 

7.  Viliski  vs.  Minneapolis,  40  Minn.,  304;  41  N.W.,  1050. 

8.  Fisher  vs.  Rochester,  6   Lans.,  225;  Cuming  vs.   Pran<r,  24 

Mich.,  514. 


Sale  of  Abutting  Lot  Passes  Title  to  Minerals.       225 

MADE,  THE  MINERALS  WOULD  PASS  TO  THE  PUBLIC— A 
SALE  OP  THE  LOTS  THEREAFTER  WITHOUT  A  RESERVA- 
TION, PASSES  THE  MINERALS. — The  owner  of  the  land,  in 
making*  the  dedication  to  the  public,  may  reserve  the 
minerals  in  and  beneath  the  surface  of  the  street,  and 
in  such  a  case,  the  title  of  the  minerals  remains  in  the_ 
owner,  and  the  minerals  can  be  removed  and  the  public 
have  no  cause  to  complain.1  So  where  a  mining-  company 
laid  out  a  tract  of  land  in  city  lots  and  dedicated  the 
streets  and  alleys  to  the  public,  but  expressly  reserved 
the  minerals  in  the  streets  and  then  sold  some  of  the  lots 
and  the  purchasers  mined  and  took  away  the  minerals, 
under  the  claim  that  there  was  no  reservation  of  the 
minerals  in  the  deeds  made  to  them;  and  that  the  deed  of 
the  lots  carried  the  fee  to  the  center  of  the  street  which 
was  the  limits  from  which  the  minerals  were  taken,  the 
court  sustained  the  contention  of  the  grantee. 2  So  where 
the  owner  of  land  made  a  plat  of  the  lots  and  blocks 
and  streets  and  made  a  dedication  of  the  streets  to  the 
public,  in  conformity  with  the  statute,  except  that  the 
owner  reserved  the  minerals  and  after  such  dedication, 
the  owner  made  a  conveyance  of  the  lots  by  numbers, 
and  made  no  mention  of  the  minerals  in  the  streets,  the 
minerals  were  held  to  pass  with  the  conveyance  of  the 
lots,  and  the  conveyance  of  the  lots  carried  the  fee  to 
the  center  of  the  street. 3 

SEC.  5.  RESERVATION  OP  THE  MINERALS  GIVES  THE 
GRANTOR  TITLE  TO  THEM,  BUT  WHERE  A  RESTRICTION 
ONLY  is  IMPOSED,  THE  TITLE  PASSES — A  RESERVATION 
OP  THE  OIL  AND  GAS  GIVES  THE  OWNER  THEREOF  THE 
RIGHT  TO  USE  AS  MUCH  LAND  AS  is  NECESSARY  FOR 
THEIR  EXTRACTION  AND  REMOVAL. — A  reservation  in  a 
lease  providing-  that  no  wells  shall  be  drilled  on  the  tract 
reserved  without  the  written  consent  of  the  lessor,  gives 
the  lessor  no  right  to  drill  wells  but  simply  restricts  the 
lessee's  rig-hts  therein  so  far  as  to  prohibit  him  from 

1.  Dubuque  vs.  Benson,  23  Iowa,  248. 

2.  Tousley  vs.  Galena  Min.  &  Smelt.  Co.,  24  Kan.,  328. 

3.  Snoddy  vs.  Bolen,  122  Mo.,  479;  25  S.W.,  935. 


226  Reservation  of  Minerals  Gives  Grantor  Title  to  Them. 

sinking  wells  without  the  written  consent  of  the  lessor;1 
but,  under  a  lease  which  reserved  a  designated  tract, 
"upon  which  no  wells  shall  be  drilled"  it  gives  the  lessees 
no  right  to  the  oil  or  gas  in  the  lands  reserved;  and  the 
lessor  is  free  to  operate  on  the  tract  or  lease  it  to  others. 2 
Since  the  reservation  of  oil  or  gas  or  other  minerals  is 
held  to  be  an  actual  grant  thereof,3  the  owner  of  the 
mineral  rights  has  a  right  to  use  so  much  of  the  surface 
as  may  be  necessary  to  extract  the  minerals  from  below 
the  surface;4  and  the  right  is  not  lost  simply  because  the 
instrument  specified  certain  other  rights  which  the  owner 
of  the  minerals  may  have.6  So,  where  in  a  conveyance 
the  grantor  reserved  the  right  to  bore  for  petroleum,  the 
owner,  his  heirs  and  assigns  have  a  right  to  put  down 
wells  to  prospect  for  oil,  even  though  there  are  no  indi- 
cations of  oil  on  the  surface;6  but,  under  a  reservation 
of  the  oil  or  other  minerals,  the  land  cannot  be  used  for 
the  development  of  other  lands;  and,  under  the  reserva- 
tion of  the  oil  rights,  no  machinery  used  on  other  lands 
can  be  stored  on  the  lands,  in  which  the  oil  rights  are 
reserved;  nor  can  oil  taken  from  other  lands  be  stored 
or  transported  over  the  lands  burdened  by  the  reserva- 
tion of  the  oil  therein.7  So  where  a  grantor  reserves  only 
the  minerals,  the  grantee  has  the  fee  simple  title  to  the 
surface  of  the  land,  burdened  with  the  right  of  the 
grantor  to  use  so  much  of  the  surface  to  take  the  min- 
erals, hence  the  grantor's  rights  to  the  surface  are  con- 
fined to  the  ground  necessarily  occupied  for  mining  pur- 
poses on  the  particular  land  and  the  removal  of  the 
minerals  therefrom.8 

1.  Brown  vs.  Spillman,  155  U.  S.,  665. 

2.  Guffey  vs.  Deeds,  9  Pa.  Co.  Ct.,  449. 

3.  Marvin  vs.   Brewster  Min.   Co.,  55  N.  Y.,  538;  Wardell  vs. 

Watson,  93  Mo.,  107;  5  S.  W.,  605. 

4.  Wardell  vs.  Watson,  93  Mo.,  107;  5  S.W.,  605. 

5.  Williams  vs.  Gibson,  84  Ala.,  228;  4  So.,  350. 

6.  Dietz  vs.  Mission  Transfer  Co.,  95  Cal.,  92;  30  Pac.,  380. 

7.  Dietz  vs.  Mission  Transfer  Co.,  95  Cal.,  92;  30  Pac.,  380; 

Dietz  vs.  Mission  Transfer  Co.  (Cal.),  25  Pac.,  423. 

8.  Dietz  vs.  Mission  Transfer  Co.  (Cal.),  25  Pac.,  423. 


When  Title  to  Mineral  Will  Pass.  227 

SEC.  6.  TITLE  TO  MINERALS  WILL  VEST  IN  A  PUR- 
CHASER OF  GOVERNMENT  LAND,  ALTHOUGH  THE  LANDS 
WERE  ACQUIRED  UNDER  ANOTHER  CLAIM  THAN  A  MIN- 
ERAL CLAIM— DISCOVERY  THEREAFTER  WILL  NOT  AFFECT 
THE  TITLE  OF  THE  PURCHASER. —Where  the  government 
of  the  United  States  excepts  mineral  lands  from  settle- 
ment, under  other  statutes  providing"  for  the  settlement 
of  farming  lands,  or  under  town  site  plats,  and  the  lands 
are  sold  as  farming  lands  or  under  a  town  site  plat,  the 
mere  fact  that  the  lands  were  mineral  lands,  at  the 
time  such  lands  were  taken  and  patented  under  the 
homestead  law,  for  farming  purposes,  or  under  a  town 
site  plat,  and  that  at  the  time  of  the  acquisition  of  the 
lands,  the  lands  were  mineral  lands,  will  not  defeat  the 
title  of  the  person  who  acquired  the  lands,  so  long  as 
such  lands  were  not  known  to  possess  their  chief  value 
from  the  minerals  contained  in  the  lands,  at  the  time  of 
the  settlement  of  the  lands  by  the  settler,  and  though 
they  are  known  to  possess  minerals,  when  the  patent  was 
issued.1  So  where  a  town  site  patent  was  issued  for 
lands,  the  fee  will  pass  though  valuable  minerals  are 
afterwards  discovered  on  the  land;2  and  when  a  patent 
was  issued  for  lots,  under  a  town  site  claim,  and  minerals 
were  afterwards  discovered  on  the  lot,  a  subsequent  pat- 
ent of  the  lots  as  mining  land  is  void.3  If  the  lands  were 
not  known  to  be  mineral  lands  at  the  time,  when  the 
grant  became  effective  between  the  occupant  and  the 
government,  the  title  will  pass  from  the  government.4 

SEC.  7.  DOCTRINE  OF  THE  CASES  OF  SCHENDELL  vs. 
ROGAN,  63  S.  W.  (TEX.),  1001,  AND  CHAPPELL  vs.  ROGAN, 
63  S.  W.  (TEX.),  1007,  AS  TO  RESERVATION  IN  PUBLIC 
LANDS. — The  Schendell  case  was  an  original  proceeding 
commenced  in  the  supreme  court  of  the  state  of  Texas 
against  the  land  commissioner  of  that  state  to  compel 

1.  Dower  vs.  Richards,  151  U.  S.,  658. 

2.  McCormick  vs.  Button,  97  Cal.,  373;  32  Pac.,  444. 

3.  Davis  vs.  Wiebold,  139  U.  S.,  507. 

4.  Francener  vs.  Newhouse,  43  Fed.  E.,  236;  Northern  Pac.  Ry. 

vs.  Walker,  47  Fed.  R.,  681. 


228  Case  of  Schendell  vs.  Eogan. 

him  to  issue  a  patent  to  certain  lands  to  an  assignee  of 
the  original  settler.  The  land  was,  at  the  time  it  was  ed- 
tered  in  1896,  a  part  of  the  public  domain  set  apart  by  the 
state  for  the  benefit  of  the  public  schools,  the  university 
and  asylums,  and  the  petition  set  forth  one  Armstrong 
settled  upon  the  land  in  good  faith,  and  that  he  acquired 
the  land  under  a  certain  act  of  the  legislature  passed 
in  1895,  and  that  the  commissioner  of  the  land  office 
awarded  the  lands  to  Armstrong,  and  that  Armstrong 
and  his  assignee  were  shown  by  the  petition  to  have 
complied  with  all  the  requirements  of  the  law  as  to  per- 
fecting the  claim  and  entitling  them  to  a  patent,  but  the 
petitioner  did  not  allege  in  his  petition  that  the  original 
settler  or  the  petitioner  made  affidavit  that  "there  is  not, 
to  the  best  of  his  knowledge  and  belief,  any  of  the  other 
minerals  embraced  in  this  title  thereon,"  and  for  failure  to 
make  the  affidavit  the  commissioner  refused  to  issue  a 
patent  to  the  assignee  of  the  settler  for  no  title  was  ac- 
quired by  the  said  Armstrong  or  his  assignee. 

The  constitution  of  the  state  of  Texas,  and  the  laws 
passed  by  the  legislature,  divided  the  lands  belonging 
to  the  state  as  free  school  lands,  asylum  lands  and  uni- 
versity lands,  and  all  other  lands  as  public  lands.  A  law 
was  passed  by  the  legislature  in  1883  which  provided  for 
the  sale  and  leasing  of  the  free  school  lands,  university 
lands  and  asylum  lands,  and  constituted  the  governor, 
attorney  general,  comptroller,  treasurer  and  land  com- 
missioner as  a  board  to  sell  and  lease  the  lands,  and  the 
law  required  that  the  lands  be  classified  as  "agriculture, 
pasture  and  timber  lands,"  and  the  same  session  of  the 
legislature  passed  another  act  reserving  the  minerals  in 
the  free  school,  university  and  asylum  lands  and  placed 
them  in  control  in  the  same  tyoard.  In  1887  another  act  was 
passed  providing  for  the  sale  and  leasing  of  these  lands, 
and  giving  the  land  commissioner  full  power  to  execute 
the  law,  and  required  the  commissioner  to  classify  the 
lands  as  agriculture,  pasture  and  timber  lands,  and  to 
place  a  value  on  each  section  and  sell  and  lease  the  land 
as  soon  as  possible,  and  sales  should  be  made  to  actual 


Reservation  of  Minerals  by  State.  229 

settlers,  who  were  required  to  make  an  affidavit  stating 
"that  he  desires  to  purchase  the  land  as  a  home,  and 
that  he  has  in  good  faith  settled  thereon,''  etc.,  and  this 
law  was  held  to  have  repealed  both  acts  of  1883.  In  1889 
another  act  with  reference  to  minerals  in  these  lands 
was  passed.  The  law  required  the  commissioner  of  the 
land  office  to  have  a  survey  and  plat  made  of  the  lands 
unsold,  and  it  was  made  the  duty  of  the  geological  and 
mineralogical  survey  to  examine  the  lands  and  designate 
the  lands  which  were  mineral,  and  all  lands  containing 
minerals  were  reserved  from  sale  under  the  act.  In  1895 
the  legislature  passed  another  act  with  reference  to  free 
school  lands,  university  lands  and  asylum  lands.  The 
act  required  the  commissioner,  who  had  full  power  and 
authority  under  the  act,  to  classify  the  lands  as  agricul- 
ture, pasture  and  timber  lands.  The  act  provided  for 
the  sale  of  these  lands,  and  the  land  commissioner  was 
required  to  make  all  sales,  and  was  authorized  to  pre- 
scribe all  regulations.  The  act  required  purchasers  to 
live  on  the  land  three  years  before  the  date  of  their  pur- 
chase, except  where  otherwise  provided,  and  were  to 
make  proper  proof,  under  oath,  of  such  residence  within 
two  years  after  the  three  years'  residence  had  expired, 
and  the  proof  thus  made  was  required  to  be  corroborated 
by  three  witnesses,  and  the  application  of  purchase  must 
state  that  the  settler  desired  the  land  as  a  home,  and  has 
in  good  faith  settled  thereon,  except  where  otherwise 
provided,  etc. 

In  1895  at  the  same  session  of  the  legislature  passed 
an  act  reserving  from  sale  all  lands  containing  minerals, 
and  was  as  follows:  "All  public  school,  university  and 
asylum  lands  containing  valuable  mineral  deposits  are 
hereby  reserved  from  sale  or  other  disposition  except  as 
herein  provided,  and  are  declared  free  and  open  to  ex- 
ploration and  purchase  under  the  regulations  prescribed 
by  law,"  etc.  The  commissioner  was  required  to  make  a 
plat  of  these  lands  unsold  and  other  officers  were  required 
to  examine  the  land  and  "designate  such  tracts"  as  are 
"apparently  mineral  bearing  as  mineral  lands,"  and  if 


230  Construction  of  Various  Statutes. 

lands  containing  such  minerals  are  not  designated  as 
such  when  classified  may  be  so  classified  thereafter  and 
the  commissioner  was  required  to  classify  the  mineral 
lands  into  mining  districts. 

Article  3498?i  provided:  "Whenever  any  application 
shall  be  made  to  buy  or  obtain  title  to  any  lands  em- 
braced in  article  3498a,  except  when  the  application  is 
made  under  this  title,  the  applicant  shall  make  oath  that 
there  is  not,  to  the  best  of  his  knowledge  and  belief,  any 
of  the  minerals  embraced  in  his  title  thereon,  and  when 
the  commissioner  has  any  doubt  in  relation  to  this  mat- 
ter he  shall  forbear  action  until  he  is  satisfied.  Any  such 
sale  or  disposition  of  the  said  lands  shall  be  understood 
to  be  with  the  reservation  of  the  minerals  thereon,  to  be 
subjected  to  location  as  herein  provided."  Article  3498a 
was  the  first  section  of  the  act  which  provided  for  the 
reservation  of  the  minerals  and  part  of  the  same  act  as 
3498n. 

The  court,  in  construing  these  various  acts,  held: 
First — That  the  law  required  the  commissioner  to 
classify  lands  as  agriculture,  pasture  and  timber  lands, 
and  that  no  class  as  mineral  lands  was  recognized  by 
law,  but  such  as  had  been  classified  as  agriculture,  pas- 
ture or  timber  lands  "that  were  found  to  be  apparently 
mineral  bearing,"  were  required  to  be  designated  as 
"mineral  lands." 

Second — The  state  adopted  a  policy  of  selling  the 
lands  as  rapidly  as  possible  to  actual  settlers  so  that  the 
state  would  have  a  population  made  up  of  home  owners, 
and  at  the  same  time  to  furnish  a  present  support  to  the 
institutions  intended  to  be  benefited  by  the  lands.  To 
accomplish  the  purpose  of  a  rapid  sale  the  commissioner 
was  given  enlarged  powers,  among  them  a  classification 
of  the  land,  and  the  action  of  the  commissioner  was  not 
subject  to  revision,  and  when  the  commissioner  offered 
the  land  to  Armstrong,  classified  as  agriculture  land,  the 
commissioner's  act  was  binding  on  the  state.  (Citing 
Steel  v.  Smelting  Co.  106  U.  S.,  450.) 


When  Entire  Estate  Passes.  231 

Third— Articles  3498a  and  3598n  were  not  intended 
to  operate  upon  lands  "which  had  not  been  found  to  con- 
tain valuable  mineral  deposits  and  were  not  apparently 
mineral  lands;"  and  as  the  classification  was  provided 
by  the  state  and  the  same  officer  had  charge  of  all  the 
lands  there  was  no  intention  "to  have  a  secret  reserva^ 
tion  of  that  which  was  not  known."  (Citing-  Davis  v. 
Wtebold,  139  U.  S.,  516.) 

Fourth — The  affidavit  provided  for  in  article  3498n 
of  the  act  which  reserved  the  minerals  did  not  apply  to 
lands  classified  and  sold  as  agricultural  lands  and  not 
known  to  contain  minerals.  The  affidavit  required  in 
that  article  applied  only  in  cases  where  lands  were  desig- 
nated as  mineral  lands,  and  in  such  an  event  an  actual 
settler  who  may  believe  that  the  lands  do  not  contain 
minerals  could  make  an  affidavit  to  that  effect  and  file 
his  claim  under  the  law  applicable  to  the  settlement  of 
lands  classified  as  agriculture,  pasture  or  timber  lands, 
and  if  the  commisssioner  should  award  the  land  to  the 
settler  the  latter  would  take  the  land  subject  to  the  res- 
ervation to  the  minerals,  but  when  the  lands  were  never 
classed  as  mineral  lands  the  settler  took  his  title  free 
from  any  reservations. 

Fifth — That  two  acts  passed  by  the  same  session  of 
the  legislature  must  be  construed  together  when  both 
relate  to  the  same  subject  matter,  and  a  construction 
must  be  given  which  gives  full  force  and  effect  to  both 
acts  and  the  court  will  look  to  the  construction  given  to 
the  acts  by  the  officers  who  had  charge  of  the  execution 
of  both  acts,  especially  when  various  acts  of  the  legis- 
lature recognized  the  construction  placed  on  the  law  by 
such  officers. 

The  court  when  speaking  of  the  contention  of  the 
land  commissioner  said:  '  'The  interpretation  contended 
for  by  the  respondent  would  render  void  all  grants  of 
public  school,  university  and  asylum  lands  which  have 
been  made  since  1889,  and  under  the  most  favorable 
view,  would  convert  these  grants  from  fee  simple,  abso- 
lute title  into  titles  subject  to  the  claims  of  the  state  for 


232  Oil  Claim  in  State  Lands. 

all  mineral  that  might  be  found  in  them.  The  inclosures 
of  these  men  who  have  settled  upon  the  land  would  be 
liable  to  the  intrusion  of  speculators  and  prospectors, 
with  the  right  to  dig  ditches,  sink  shafts  and  bore  wells 
for  the  purpose  of  ascertaining  whether  or  not  minerals 
are*contained  therein.  No  provisions  are  made  for  pro- 
tecting the  rights  of  the  state's  vendees,  nor  rules  regu- 
lating the  operation  of  seekers  after  minerals,  but  the 
unqualified  right  is  given  to  explore  the  lands  without 
regard  to'  the  rights  of  others,  which  shows  that  it  was 
not  intended  to  apply  to  lands  which  the  state  has  sold." 
The  purchaser  was  held  not  required  to  make  the  affida- 
vit and  the  court  ordered  the  commissioner  to  issue  the 
patent. 

The  case  of  Chappel  v.  Rogan  was  where  the  land  was 
taken  up  about  1895  as  pasture  lands  and  all  the  require- 
ments of  the  law  were  fulfilled  excepting  that  no  affida- 
vit was  made  as  was  required  under  article  3498n  of  the 
laws  of  1895  which  reserved  the  minerals  in  the  free 
school,  university  and  asylum  lands.  The  lands  were 
taken  up  by  one  Spark  and  in  1901  one  Chappel  claimed 
to  have  discovered  indications  of  oil,  applied  to  the  com- 
missioner of  the  public  lands  under  the  laws  of  1895  to 
prospect  on  the  land,  but  the  commissioner  refused  the 
permit,  so  an  original  action  was  brought  in  the  Supreme 
Court  to  compel  the  commissioner  to  grant  the  permit. 
The  court  sustained  the  commissioner  and  held  that  the 
settler  acquired  the  land  free  from  the  claims  of  the 
state  and  the  rules  laid  down  in  the  case  of  Schendell  v. 
Rogan  applied. 

SEC.  8.  AN  OIL  CLAIM  ON  GOVERNMENT  LAND  MUST 
BE  LOCATED,  MARKED  AND  RECORDED  TO  GIVE  GOOD 
TITLE  TO  THE  CLAIM. — The  location  of  a  mining  claim 
under  the  laws  of  the  United  States  depend  upon  three 
essential  requirements:  (1)  Discovery,  (2)  marking  of  the 
boundaries,  (3)  a  record.1  So,  under  a  provision  of  the 
United  States  statutes  that  "no  location  of  a  mining 

1.  McShanevs.  Kenkle,18Mont.,208;  44Pac.,979;33L.R.A.,  851. 


Oil  Claims  on  Government  Land.  233 

claim  shall  be  made  until  the  discovery  of  the  vein  or 
lode  within  the  limits  of  the  vein  located,"  the  discovery 
and  location  may  be  made  by  any  person  who  is  a  citi- 
zen of  the  United  States;  and  the  business  or  calling  of 
the  person  is  of  no  consequence;  and  the  location  is  valid; 
if  the  mineral  bearing1  rock  is  in  place;  and  contains  suffi- 
cient precious  metal  to  warrant  the  locator  to  spend  his 
time  and  his  money  on  the  claim  with  the  hope  of  being 
brought  to  deposits  of  a  greater  commercial  value;1  but 
the  mineral  bearing  rock  must  be  discovered  within  the 
limit  of  a  claim  not  taken;  and  "known"  veins  or  lodes 
must  be  ascertained  and  the  quantity  must  be  so  deter- 
mined as  would  justify  the  working  of  such  veins  or 
lodes. 2  The  location  of  the  claim  must  also  be  distinctly 
marked  on  the  ground  so  that  the  location  may  be  easily 
traced;3  but  setting  stakes  on  each  corner  and  one  in  the 
center  of  each  end,  with  notices  posted  thereon,  is  a  suffi- 
cient marking.4  Any  workings  on  the  ground  which  can 
be  found  with  little  effort  together  with  a  registration 
of  the  notice,  that  the  claim  is  located,  is  sufficient. 5  So 
where  there  is  a  mound  of  dirt  which  was  removed  in  the 
prosecution  of  mining,  it  is  notice  of  the  location. 6  So 
where  an  oil  claim  is  located  on  public  lands,  the  locator 
must  have  actually  ascertained  that  oil  existed  on  the 
lands;  and  the  fact  that  the  surface  indications  were 
such,  that  oil  might  exist,  is  not  sufficient;  but  the  lo- 
cator must  know  that  oil  existed;  and  a  mere  conclusion 
that  oil  does  exist,  which  is  drawn  from  other  facts,  is 
not  a  sufficient  discovery,7  since  the  mere  fact  that  lode 
or  veins  exist  in  adjacent  lands  is  not  a  sufficient  dis- 

1.  McShane  vs.    Kenkle,  18  Mont.,  208;  Book  vs.  Justice  Min. 

Co.,  58  Fed.  R.,  106. 

2.  Montana  C.  R.  Co.  vs.  Mi^eon,  68  Fed.  R.,  811;  Michael  vs. 

Mills,  22  Colo.,  439;  45  Pac.,  429;  Migeon  vs.  Montana  C. 
R.  Co.,  44  U.  S.  App.;  United  States  vs.  Iron  Silver  Min. 
Co.,  128  U.  S.,  673;  Brownfield  vs.  Bier,  15  Mont.,  403. 

3.  U.  S.  Rev.  Statutes,  Sect.  2324;  Gird  vs.  Oil  Co.,  60  Fed.  R.,  60. 

4.  Howeth  vs.  Sullenger,  113  Gal.,  547;  45  Pac.,  841. 

5.  Noyes  vs.  Mantle,  127  U.  S.,  343. 

6.  Iron  Silver  Min.  Co.  vs.  Mike,  etc.,  143  U.  S.,  394. 

7.  Nevada  Sierra  Oil  Co. vs.  Home  Oil  Co. ,  98  Fed.  Rep.  (Cal. ) ,  673. 


234  Jurisdiction  of  Equity  Courts. 

covery.1  So,  with  the  location  of  an  oil  claim,  the  fact 
that  oil  is  found  in  nearby  territory  is  not  sufficient,8  but 
where  the  locator  of  an  oil  claim  is  in  possession,  though 
his  title  may  be  defective,  another  locator  cannot  acquire 
any  right,  title  or  interest  against  such  a  claimant  by 
gaining  possession  by  means  of  fraud.  *  The  oil  must  not 
only  be  known  to  exist,4  but  also  where  another  person 
discovers  the  oil,  such  a  fact  must  be  known  to  the  lo- 
cator; and  such  locator  must  step  into  the  shoes  of  the 
discoverer  and  adopt  all  his  acts  so  a  mere  intruder  can 
not  set  up  the  rights  which  were  acquired  by  another 
locator. 5 

SEC.  9.  JURISDICTION  OP  COURTS  OF  EQUITY. — A 
person  who  files  and  selects  lands  as  agricultural  lands 
has  no  claim  to  the  land  against  the  claims  of  persons 
who  have  located  oil  placer  claims  on  the  land,  and  the 
boundaries  of  the  claims  are  definitely  marked,  and  that 
petroleum  was  discovered  and  there  were  productive 
wells  on  the  land  and  the  locators  are  in  open,  peacable 
and  exclusive  possession  of  the  land  and  the  claims  of 
the  oil  placer  claims  are  older  than  the  claim  of  the  per- 
son who  files  a  claim  to  the  land  as  agriculture  land.6 
That  the  oil  placer  claim  must  be  located  and  the  oil 
actually  discovered  is  a  condition  precedent  to  the  val- 
idity of  the  claim.  In  this  respect  the  court  in  a  late 
case  said:  "The  great  importance  that  the  oil  industry 
hasjalready  assumed  in  this  state  (Cal.),  the  enormous 
value  of  oil  producing  lands  and  the  consequent  avidity 
with  which  they  are  sought,  coupled  with  the  fact  that 
the  present  suit  will  serve  as  a  precedent  for  others  now 
pending,  has  induced  the  court  to  take  the  case  up  out 
of  its  order  and  to  give  the  question  presented  careful 

1.  Sullivan  vs.  Iron  Silver  Min.  Co.,  143  U.  S.,  374. 

2.  Nevada  Sierra  Oil  Co.  vs.  Home  Oil  Co.,  98  Fed.  Rep.,  673. 

3.  Nevada  Sierra  Oil  Co.  vs.  Home  Oil  Co.,  98  Fed.  R.,  673. 

4.  Nevada  Sierra  Oil  Co.  vs.  Miller,  97  Fed.  R.,  681. 

5.  Nevada  Sierra  Oil  Co.  vs.  Home  Oil  Co.,  98  Fed.  R.,  673. 

6.  Cosmos  Exploration  Co.  vs.  Gray  Eagle  Oil  Co.,  104  Fed.  R., 

20;  Pacific  Land  &  Improvement  Co.  vs.  Elwood  Oil  Co., 
104  (C.  C.),20. 


When  is  a  Discovery  of  Oil  Made.  235 

consideration,  to  the  end  that  the  law  may  be  speedily 
settled  and  the  way  indicated  by  which  title  to  such 
lands  may  be  acquired  and  the  important  industry  re- 
ferred to  encouraged  and  developed.  In  Gird  v.  Oil  Co., 
60  Fed.  R.,  530-32,  this  court  pointed  out  that  the  gov- 
ernment title  to  oil  bearing-  lands  can  only  be  acquired^ 
under  existing  laws,  pursuant  to  the  provision  of  the 
mining  laws  relating  to  placer  claims.  And  in  the  very 
recent  case  of  Nevada- Sierra  Oil  Co.  v.  Home  Oil  Co.,  98 
Fed.  R.,  673,  it  was  here  decided,  as  it  has  been  many 
times  before  by  other  courts,  as  well  as  by  the  land  de- 
partment of  the  government,  that  mere  indications,  how- 
ever strong,  are  not  sufficient  to  answer  the  requirements 
of  the  statute  of  the  United  States  relating  to  placer  as 
well  as  load  claims,  which  requires,  as  one  of  the  essen- 
tial conditions  to  the  making  of  a  valid  location  of  un- 
appropriated public  lands  of  the  United  States  under 
mining  laws,  a  discovery  of  minerals  within  the  claim. 
That  decision  seemed  to  have  occasioned  surprise  among 
those  seeking  to  acquire  from  the  government  lands  sup- 
posed to  contain  oil,  although  it  was,  as  shown  in  the 
opinion  delivered  at  the  time,  in  strict  accord  with  the 
provision  of  the  statute.  When  no  discovery  of  oil  or 
minerals  have  been  made  the  location  is  of  no  validity 
and  is  open  to  location  by  others."1  The  rule  as  thus  laid 
down  was  approved  in  later  cases. 8  So  where  a  person 
had  made  a  selection  of  land  in  place  of  land  within  a 
certain  reservation,  and  the  selection  was  made  as  agri- 
culture land,  the  person  who  selected  the  land  acquired 
an  equitable  title  to  the  land  even  though  the  govern- 
ment had  not  yet  issued  a  patent  where  such  person  com- 
plied with  all  the  requirements  of  the  law,  the  court 
will  grant  an  injunction  against  persons  who  invade  the 
land  and  extract  from  the  land  petroleum  which  had 
been  discovered  after  the  selection  had  been  made,  and 

1.  Olive  Land  &  Dev.  Co.  vs.  Olmstead,  103  Fed.  R.,-572. 

2.  Cosmos  Exploration  Co.  vs.  Gray  Eagle  Oil  Co.,  104  Fed.  R., 

20;  Pacific  Land  &  Improvement  Co.  vs.  Elwood  Oil  Co., 
104  Fed.  R.,20. 


236        When  a  Settler  Acquires  no  Title  to  Minerals. 

the  injunction  will  be  continued  until  the  land  depart- 
ment will  determine  whether  or  not  the  land  will  be 
awarded  to  the  settler  as  agriculture  land.  The  settler's 
right  to  the  land  as  agriculture  land  will  not  be  barred, 
for  the  reason  that  the  land  was  located  where  oil  had 
been  produced.1  A  suit  in  equity  to  quiet  title  and  for 
an  injunction  and  a  receiver  will  not  lie  where  a  person 
who  had  acquired  a  patent  to  land  within  a  forest  reser- 
vation g'ave  up  his  claim  to  such  land  and  selected  land 
which  was  most  valuable  for  mineral  purposes,  as  agri- 
culture land,  and  the  answer  to  the  bill  of  complaint  set 
up  that  the  defendants  discovered  on  the  land  sands  and 
shale  containing  a  residuum  of  petroleum  and  bituminous 
matter  and  a  strata  of  oil  bearing  sands,  and  in  a  quan- 
tity as  would  lead  any  practical  miner  to  make  further 
development  thereof,  and  did  lead  them  to  do  so,  and 
that  the  location  was  marked  and  staked,  and  that  large 
quantities  of  oil  were  produced  from  wells  on  the  land, 
and  that  the  locators  had  been  in  open  and  peaceable  pos- 
session of  the  land  for  some  time  previous  to  the  selec- 
tion made  by  the  complainant.2  So  where  an  answer  sets 
up  that  the  parties  defendant  had  located  oil  placer 
claims  and  produced  oil  and  was  in  possession  at  the 
time  the  selection  was  made,  and  that  the  land  was  hig-h 
and  dry  and  unfit  for  agriculture  purposes,  and  that  oil 
was  produced  from  the  lands,  and  the  answer  is  sworn 
to  and  is  supported  by  affidavits,  and  the  affidavit  when 
the  selection  was  made  by  the  settler  appears  to  be  un- 
true, a  court  of  equity  will  not  grant  an  injunction  and 
appoint  a  receiver  pending  litigation. 8  So  where  a  selec- 
tion was  made  by  a  settler  of  oil  producing  lands  as  agri- 
culture lands  and  the  locators  are  in  possession  developing 
the  lands  for  the  production  of  oil,  and  they  file  a  protest 
with  the  land  department  against  the  selection  made  by 
the  settler  and  the  protest  is  not  disposed  of  by  the  gov- 

1.  Olive  Land  &  Devel.  Co.  vs.  Olmstead,  103  Fed.  R.,  568. 

2.  Cosmos  Exploration  Co.  vs.  Gray  Eagle  Oil  Co.,  104  Fed.  R.,  20. 

3.  Pacific  Land  &  Improvement  Co.  vs.  Elwood  Oil  Co.,  104  Fed. 

R.,20. 


Rights  of  Owner  of  Base  Fee.  237 

eminent,  a  court  of  equity  has  no  jurisdiction  to  settle 
the  claims  of  the  parties  while  the  protest  is  pending1.1 

SEC.  10.  RIGHTS  OF  EXECUTORY  DEVISEES  TO  CON- 
TROL THE  ACTS  OF  THE  OWNER  OF  A  BASE  FEE. — A  COUrt 

of  equity  will  not  interfere  to  stay  waste  when  the  owner 
of  a  base  fee  had  leased  the  lands  for  the  production  of 
minerals  at  the  suit  of  the  executory  devisees.  In  this 
case  a  father  devised  a  certain  tract  of  land  to  three 
sons,  and  a  clause  in  the  will  provided  that  the  land 
should  go  to  the  survivor  of  the  three  sons,  and  in  case 
any  or  all  of  the  three  sons  should  die  without  issue  then 
the  land  was  to  go  to  certain  persons  named.  At  the 
time  the  suit  was  filed  two  of  the  sons  had  died  and  the 
survivor  was  at  the  time  about  forty  years  of  age  and 
was  in  good  health,  both  mentally  and  physically.  There 
was  no  impediment  against  him  having  issue  before  his 
death,  and  as  he  was  the  owner  of  the  minerals  below 
the  surface,  as  well  as  the  grass  upon  the  surface,  and 
as  it  was  to  the  interest  of  the  public  that  the  mineral 
resources  should  be  developed,  the  court,  under  these 
circumstances,  would  not  enjoin  waste.2  In  Georgia  the 
court  held  that  the  owner  of  a  determinable  fee  had  ab- 
solute control  over  the  corpus  of  the  land  and  was  "ex- 
empt from  the  supervision  of  chancery  in  respect  to 
waste."8 

So  where  a  will  was  construed  to  give  a  life  estate  to 
four  children,  two  sons  and  two  daughters,  and  the  will 
provided  that  if  one  or  both  of  the  daughters  should 
marry,  the  daughter  who  married  should  share  equally 
in  the  lands  in  fee  with  his  married  children,  and  a  cer- 
tain sale  and  division  were  provided  for  in  the  will,  which 
sale  and  division,  as  construed  by  the  court,  could  be 
made  whenever  both  sons  should  die  or  both  daughters 

1.  Cosmos  Exploration  Co.  vs.  Gray  Eagle  Oil  Co.,  104  Fed.  R., 

20;  Pacific  Land  &  Improveraeat  Co.  vs.  Elwood  Oil  Co., 
104  Fed.  R.,  20;  Savage  vs.  Worsham,  104  Fed.  R.,  18. 

2.  Peterson  vs.  Gannon,  193  111.,  372. 

3.  Matthews  vs.  Hudson,  81  Ga.,  120. 


238  Eight  of  Life  Tenant. 

should  be  dead  or  married,  and  the  sale  was  to  be  on  a 
year's  credit,  and  the  proceeds  of  the  sale  was  to  be  di- 
vided between  "all  his  lawful  heirs,"  the  fee  was  held 
not  to  vest  until  these  contingencies  happened,  and  that 
if  any  of  the  daughters,  who  were  both  single,  should 
marry,  although  both  were  at  the  time  over  eighty  years 
of  age,  the  daughter  would  take  an  undivided  interest  in 
the  fee,  and  the  daughters  were  not  life  tenants  under 
the  statute  of  that  state,  consequently  were  not  impeach- 
able  for  waste.  The  tenants  were  held  not  liable  for  the 
value  of  timber  cut  and  disposed  of  at  the  time  the  action 
was  brought,  but  the  court  granted  the  petitioner  equi- 
table relief  and  enjoined  the  tenants  from  further  acts 
of  waste.  *  A  late  case  arose  in  the  state  of  Iowa  where 
a  widow  claimed  a  certain  interest  in  her  deceased  hus- 
band's lands  in  fee,  and  the  other  interest  was  in  her 
children,  and  all  held  as  tenants  in  common.  The  widow 
made  a  lease  of  the  land  for  the  purpose  of  mining  coal, 
and  an  assignee  of  the  lessee  entered  and  took  from  the 
land  large  quantities  of  coal  for  which  the  assignee  of 
the  lease  paid  the  widow  a  certain  royalty  in  full  of  all 
claims  for  the  coal  mined.  No  mines  were  open  at  the 
time  the  widow  made  the  lease,  although  coal  had  been 
taken  from  the  land  some  fifteen  years  before  the  death 
of  the  husband,  but  the  place  where  the  coal  was  taken 
filled  in,  and  also  the  new  mine  was  opened  in  a  different 
part  of  the  land  and  a  new  vein  of  coal  was  opened.  An 
action  was  brought  after  the  death  of  the  widow  against 
the  coal  company  for  the  value  of  the  coal  taken  during 
the  life  of  the  widow.  The  wife  was  held  to  have  no 
right  to  dispose  of  a  part  of  the  whole  property,  and  she 
had  no  right  to  lease  the  land  for  the  purpose  of  mining 
coal  when  she  held  only  an  undivided  interest,  because, 
until  a  co-tenant's  share  is  allotted  to  him  in  severality 
a  co-tenant  has  no  right  to  sell  or  use  coal  found  under 
the  entire  tract  when  the  vein  has  not  theretofore  been 
opened  and  the  mines  are  not  opened  when  they  were  com- 

1.  Forabow  vs.  Green,  108  N.  C.,  339;  12  S.  E.,  1003. 


Right  of  Statutory  Life  Tenants  to  Take  Minerals.      239 

pletely  abandoned  before  the  estate  in  co-tenancy  vested 
or  a  new  vein  is  opened. * 

SEC.  11.  RIGHT  OF  STATUTORY  LIFE  TENANTS  TO 
TAKE  MINERALS. — In  many  of  the  states  a  statutory  life 
estate  in  the  lands  of  the  husband  on  his  death  is  given 
to  the  wife,  or  in  case  the  wife  dies,  it  is  given  to  tHe~ 
husband,  so  the  question  may  arise  as  to  whether  the  life 
tenant  would  be  entitled  to  take  the  minerals  from  the 
lands  during  the  pendency  of  the  life  estate.  By  the 
ancient  common  law  only  three  persons  were  denied  the 
right  to  commit  acts  of  waste,  namely,  guardian  in  chiv- 
alry, tenant  in  dower,  and  tenant  by  the  curtesy.  All 
other  tenancies  could  commit  waste  because  these  estates 
were  created  by  the  acts  of  the  parties,  and  the  person 
who  created  such  a  tenancy  could  have  provided  against 
waste  if  he  desired,  and  if  he  did  not,  it  was  his  own 
fault.2  In  the  three  instances  above  named  the  law  itself 
created  the  tenancies,  hence  the  law  gave  a  remedy 
against  such  tenants  for  acts  of  waste.  To  remedy  the 
defect  of  the  common  law  a  statute  known  as  the  "Stat- 
ute of  Marlbridge, "  was  passed  in  1267  A.D.,  and  said 
act  provided:  "Also  all  fermors,  during  their  terms, 
shall  not  make  waste,  sale,  nor  exile  of  house,  woods  or 
men,  nor  of  anything  belonging  to  the  tenements;  which 
thing,  if  they  do,  and  thereof  be  convict,  they  shall  yield 
full  damage  and  punished  amerciament  grievously. "  In 
1278  the  "Statute  of  Gloucester"  was  passed,  which  pro- 
vided: "That  a  man  from  henceforth  shall  have  a  writ 
of  waste  in  the  chancery  against  him  that  holdeth  by 
the  law  of  England,  or  otherwise  for  term  for  life  or  for 
term  of  years  or  a  woman  in  dower;  and  he  which  shall 
be  attained  of  waste  shall  lose  the  thing  that  he  hath 
wasted,  and  moreover  shall  recompense  thrice  so  much 
as  the  waste  shall  be  taxed  at. ''  The  question  to  be  con- 
sidered in  this  section  is  whether  a  life  tenant  is  liable 
for  waste  where  the  estate  is  created  by  statute.  In 
Michigan  a  statute  gave  the  wife  of  a  deceased  hus- 

1.  Hook  vs.  Garfield  Coal  Co.,  —  la.,  — ;  83  N.  W.,  963. 

2.  Sampson  vs.  Bayley,  21R.L,  174-78;  42 Atl., 712;  44L.R.A.,711. 


240  May  Not  Take  the  Minerals. 

band  the  use  during1  life  of  one-third  of  all  the  lands 
whereof  her  husband  was  seized  of  an  estate  of  inherit- 
ance at  any  time  during  marriage  unless  she  was  law- 
fully barred  from  dower.  The  grant  to  the  widow  was 
held  to  be  created  by  operation  of  law,  and  that  the 
widow  was  entitled  to  the  use  of  one-third  of  the  product 
from  mines,  whether  the  mines  were  open  or  not.  The 
mines  were  not  open  at  the  time  of  the  death  of  the  hus- 
band, and  the  only  use  that  could  be  made  of  the  land 
was  that  of  mining,  and  as  there  was  but  one  mode  of 
enjoyment  of  the  land,  but  one  source  of  profit,  the 
widow  was  entitled  to  the  use  of  the  land  when  mining 
was  the  only  use  to  which  the  land  could  be  put. 1  A  ten- 
ant for  life  created  by  statute  has  been  held  liable  for 
waste.  Thus  where  a  man  died  owning  real  estate,  and 
the  widow  was  entitled  to  the  use  of  the  land  for  life  as 
her  homestead  given  her  by  the  statute,  the  widow  was 
held  bound  to  pay  the  taxes  and  keep  the  houses  in  re- 
pair. The  court  there  said:  "The  law  is  too  well  settled 
to  need  discussion  that  a  tenant  for  life  of  real  estate  is 
compelled  to  pay  taxes  and  the  expense  of  repairs  out 
of  the  rents  and  profits,  whether  such  life  estate  comes 
by  will,  conveyance  or  operation  of  law,  unless  the  life 
tenant  voluntarily  pays  them  out  of  other  funds.  If  the 
life  tenant  permits  the  premises  to  decay  for  the  want  of 
repair,  and  neglects  to  pay  the  taxes,  subjecting  the  es- 
tate to  sale  therefor,  it  must  diminish  the  value  of  the 
estate,  and  thus  there  is  a  resulting  lasting  damage  to 
the  freehold  or  inheritance,  and  this  constitutes  waste. " 
The  court,  under  these  circumstances,  appointed  a  re- 
ceiver to  collect  the  rents  and  profits,  so  that  such  rents 
and  profits  could  be  applied  to  the  payment  of  accrued 
taxes  as  well  as  future  taxes,  and  to  the  making  of  re- 
pairs. *  Under  the  Georgia  code  a  widow  was  given  a 
life  estate  in  her  husband's  lands,  and  she  cut  timber 

1.  Seager  vs.  McCabe,  92  Mich.,  186;  52  N.  W.,  299;  16  L.  R.  A., 

247. 

2.  St.  Paul  Trust  Co.  vs.  Mintzer,  65  Minn.,  124;  67  N.  W.,  657; 

32  L.  R.  A.,  756. 


Waste  by  Statutory  Life  Tenant.  241 

from  the  lands,  and  the  cutting1  of  the  timber  was  found 
to  be  a  permanent  injury  to  the  estate  of  the  remainder- 
men, the  widow  was  held  liable  for  waste  under  a  stat- 
ute of  the  state  which  provided:  "The  tenant  for  life  is 
entitled  to  the  full  use  and  enjoyment  of  the  property, 
so  that  in  such  use  he  exercises  the  ordinary  care  of-a 
prudent  man  for  its  preservation  and  protection,  and 
commits  no  acts  tending"  to  the  permanent  injury  of  the 
person  entitled  to  the  remainder  on  reversion."1 

Another  case  arose  in  Wisconsin  where  the  wife  was 
given  a  life  estate  in  certain  lands  of  her  husband  and 
the  estate  so  given  was  purely  statutory.  The  wife  was 
charged  with  acts  of  waste  in  a  bill  filed  by  the  re- 
maindermen. The  court  considered  the  case  upon  the 
ground  that  the  widow  would  be  liable  for  waste  if  her 
acts  were  a  permanent  injury  to  the  freehold.8  So  in  a 
later  case  where  the  life  estate  in  the  widow  was  assigned 
and  sold  to  a  third  person  the  liability  of  a  life  tenant 
created  by  statute  was  admitted,  the  assignee  in  the 
latter  case  taking  the  same  rights  as  the  widow  took.8 
The  statute  of  Nebraska  gives  to  the  widow  a  life  estate 
in  all  the  lands  owned  by  the  husband  at  the  time  of  his 
death.  The  widow  cut  down  trees  and  sold  them  and 
applied  the  money  to  the  payment  for  land  purchased  in 
her  own  name  and  for  her  own  benefit,  and  to  the  pay- 
ment of  taxes  assessed  on  the  land  in  which  she  had  the 
life  estate.  The  widow  was  held  liable  for  waste  and 
was  required  to  account  for  the  value  of  the  trees  sev- 
ered from  the  freehold  and  was  enjoined  from  the  com- 
mission of  further  acts  of  waste.4 

The  rule  applicable  to  oil  and  gas  and  other  minerals 
is  that  oil  and  gas  are  part  of  the  realty  and  any  sale  or 
disposition  of  the  gas  by  lease  is  a  sale  or  disposition  of 
the  land  itself.5  Waste  has  been  defined  "to  be  any  act 

1.  Smith  vs.  Smith,  105  Ga.,  106;  31  S.  W.,  135. 

2.  Wilkinson  vs.  Wilkinson,  59  Wis.,  557;  18  N.  W.,  528. 

3.  Helms  vs.  Pabst  Brewing  Co.,  104  Wis.,  7;  79  N.W.,  738. 

4.  Disher  vs.  Disher,  45  Neb.,  100;  63  N.  W.,  368. 

5.  Sects.  7  and  8,  Pages  8  and  9;  Hook  vs.  Garfield  Coal  Co.,  — 

la., — ;  83  N.  W.,  963. 


242  Waste  by  Statutory  Life  Tenant. 

or  omission  of  duty  by  a  tenant  of  land  which  does  a 
lasting*  injury  to  the  freehold,  tends  to  the  permanent 
loss  of  the  owner  of  the  fee,  or  to  destroy  or  lessen  the 
value  of  the  inheritance,  or  to  destroy  the  identity  of 
the  property,  or  impair  the  evidence  of  title."1  Under 
the  authorities  cited  there  is  no  doubt  but  that  a  life 
tenant  created  by  statute  is  subject  to  the  same  liabili- 
ties for  waste  as  any  other  tenant  whose  estate  is  less 
than  a  freehold.  The  reason  why  a  guardian  in  chivalry, 
tenant  in  dower  and  a  tenant  by  the  courtesy  were  held 
liable  for  waste  by  the  ancient  common  law  was  that 
these  tenancies  were  created  by  the  law  itself  which 
therefore  gave  a  remedy  against  them,2  and  the  same 
rule  should  apply  when  a  statutory  life  estate  is  created 
by  operation  of  law. 

1.  Bandlow  vs.  Thieme,  53  Wis.,  57;  9  N.  W.,  920. 

2.  Sampson  vs.  Bayley,  21  R.  I.,  174;  42  Atl.,  712;  44  L.  R.  A., 

711;  Cooley  Bl.  Com.,  Bk.  2,  Page  282. 


RATES  AND  SUPPLY  OF  GAS. 


CHAPTER  XVI. 

SECTION  1.  CITY  MAY  OWN  GAS  PLANTS — HAS  THE 
POWER  TO  SUPPLY  ITS  INHABITANTS  FOR  PAY — MAY 
LEVY  TAX  TO  CONSTRUCT  PLANT  OR  ISSUE  BONDS.— A 
city  has  the  power  and  the  right  to  own  and  control  its 
own  gas  works  for  the  purpose  of  lighting"  its  streets.1 
To  furnish  gas  to  the  city  to  light  its  streets  or  buildings 
or  to  the  inhabitants  of  a  city  for  domestic  use,  is  a  busi- 
ness of  a  public  nature,  and  the  instrumentalities  by 
which  gas  may  be  furnished  are  devoted  to  a  public  use, 
or  purpose,  for  which  the  taxing  power  may  be  constitu- 
tionally exercised. 2  So  a  private  corporation  which  owns 
a  natural  gas  well  some  distance  from  a  city,  may  exer- 
cise the  right  of  eminent  domain  to  reach  a  city  for  the 
purpose  of  selling  gas  to  consumers,  because  the  corpo- 
ration was  devoting  its  property  to  a  public  use. 3  So  a 
city  may  levy  taxes  for  the  purpose  of  purchasing  a  nat- 
ural gas  well,  where  the  gas  from  the  well  is  to  be  sold 
to  private  consumers  of  the  city,  since  to  supply  gas  to 
the  public  is  a  public  business  and  the  property  is  used 
for  a  public  purpose,  and  taxes  may  be  levied  for  that 
purpose. 4  To  supply  the  people  of  a  city  with  gas  is  a 

1.  Wheeler  vs.  Philadelphia,  77  Pa.,  338;  Opinion  of  Justices,  150 

Mass.,  592;  24  N.  E.,  1084;  8  L.  E.  A.,  487;  State  vs.  Hamil- 
ton, 47  Ohio  St., 52;  Linn  vs.  Burghers,  160  Pa.,  511;  Water 
Co.  vs.  Village,  161  N.Y.,  154. 

2.  State  ex.  rel.  Atty.  Gen.  vs.  City  of  Toledo,  47  Ohio  St.,  112; 

Jacksonville  Electric  Light  Co.  vs.  Jacksonville,  36  Fla., 
229;  Mitchell  vs.  Negaunee,  113  Mich.,  359;  38  L.  R.  A., 
15;  71  N.  W.,  646;  Townsend  Gas  &  E.  Co.  vs.  Port  Town- 
send,  19  Wash.,  407;  53  Pac.,  651. 

3.  Bloomfield  and  R.  Nat.   Gas  Light  Co.   vs.   Richardson,  63 

Barb.,  437. 

4.  State  ex.  rel.  Atty.  Gen.  vs.  City  of  Toledo,  47  Ohio  St.,  112; 

11  L.  R.  A.  ,729. 


244  Supply  of  Gas. 

public  business,  so  where  a  city  owns  the  plant  and  sup- 
plies the  gas  to  the  people  for  pay,  the  rates  must  be 
uniform  to  all  who  may  purchase  gas;  and  where  the  gas 
trustees  of  a  city  undertake  to  furnish  gas  to  manufac- 
turers at  a  less  rate  than  other  consumers,  such  special 
favors  are  unjust  discriminations.1  Where  a  city  gives 
a  chartered  gas  company  the  exclusive  privilege  of  sup- 
plying gas  to  a  city  and  the  inhabitants  of  a  city,  the 
city  may  own  its  own  gas  works  and  furnish  itself  with 
gas  necessary  for  consumption  and  the  gas  company  can 
not  complain. 8  Cities  and  towns,  however,  have  no  power 
to  acquire  and  own  gas  works  and  furnish  light  for  its 
streets  and  the  inhabitants  of  cities  or  towns  without 
the  consent  of  the  legislature,  and  the  power  cannot 
be  implied  because  the  statute  authorizes  it  to  erect 
and  maintain  street  lamps  to  furnish  light  for  the 
streets. * 

It  has  been  held  that  a  city  has  power  to  purchase 
or  erect  a  plant  for  the  purpose  of  lighting  the  streets 
and  buildings  belonging  to  a  city,  under  a  statute  pro- 
viding that  a  city  shall  have  power  to  light  streets, 
alleys,  or  other  public  places  with  electric  lights  or  other 
form  of  light  and  to  contract  with  any  individual  for 
lighting  such  streets,  etc.,  with  electric  light  or  other 
form  of  light,"  and  may  issue  bonds  to  pay  for  such  plant 
after  erected.4  And  where  a  city  charter  authorized  the 
city  to  own  and  possess  real  and  personal  property  to 
the  value  of  1100,000  such  city  has  the  power  to  acquire 
a  plant  to  generate  electric  lights  for  the  streets  of  the 
city  though  the  charter  does  not  give  the  city  power  to 
light  its  streets,  as  such  power  is  implied.6  And  where 
the  city  is  given  power  to  light  its  streets  by  plants  of 


1.  Dalzell  vs.  Gas  Light  &  Heat.  Co.,  5  Ohio  C.  C.,  435. 

2.  Hamilton    Gaslight   &    Coke    Co.  vs.    Hamilton,  146  U.  S., 

258. 

3.  Spaulding-  vs.  Town  of  Peabody,  153  Mass.,  129. 

4.  Rushville  Gas  Co.  vs.  Rushville,  121  Ind.,  206;  Crawfordsville 

vs.  Braden,  130  Ind.,  149. 

5.  Mauldin  vs.  Greenville,  33  S.  C.,  1. 


Contract  to  Supply.  245 

its  own,  such  city  has  the  implied  power  to  furnish  light 
for  private  use. * 

SEC.  2.  CITY  MAY  MAKE  A  CONTRACT  TO  SUPPLY 
THE  CITY  WITH  GAS— MAY  IMPOSE  CONDITIONS  IN  THE 
ORDINANCE  TO  SUPPLY  GAS  FREE  TO  QUASI  PUBLIC 
PLACES  OR  TO  THE  CITY. — Where  a  city  enters  into  a  con- . 
tract  with  a  gas  company  to  furnish  gas  to  light  its 
streets,  it  does  so  under  its  power  to  contract  and  not 
under  its  power  to  legislate,  and  where  such  a  contract  is 
within  the  power  of  the  city  to  make,  and  not  tainted 
with  fraud,  the  contract  is  as  binding  and  subject  to  the 
the  same  rules  of  construction  as  if  made  between  two 
individuals.8  So  it  is  within  the  power  of  a  city  to  make 
the  best  contract  possible,  or  impose  such  restrictions 
as  it  may  see  fit,  and  where  the  city  gave  a  gas  company 
the  right  to  lay  pipes  on  the  streets  of  a  city,  the  ordi- 
nance may  provide  that  the  company  shall  furnish  gas 
free  to  all  public  buildings  and  places  of  worship;8  and 
where  the  ordinance  which  gave  the  gas  company  a  right 
to  lay  its  pipes  on  the  street  provided  that  "so  long  as 
it  shall  have  the  exclusive  right  to  use  the  streets  and 
alleys  of  a  city  for  their  pipes,"  it  shall  furnish  gas  free 
to  a  city,  and  the  city  passed  an  ordinance  giving  another 
company  the  right  to  use  the  streets  for  that  purpose, 
but  required  such  company  to  have  in  operation  a  gas 
well  connected  with  pipes  in  operation  within  a  year,  the 
latter  company  did  not  acquire  any  right  to  the  streets 
until  the  condition  is  fulfilled,  and  the  first  company 
must  continue  to  furnish  gas  free  until  such  time. 4  A  city 
has  the  power  to  contract  to  pay  a  gas  company  so  much 

1.  Crawfordsville  vs.  Braden,  121  Ind.,  206;  Thompson-Huston 

El.  Light  Co.  vs.  Newton,  42  Fed.  R.,  723;  Smith  vs.  Nash- 
ville, 88  Tenn.,  464;  Citizens  Gaslight  Co.  vs.  Wakefield, 
161  Mass.,  432;  37  N.  E.,  444. 

2.  Indianapolis  vs.  Indianapolis  Gas  Light  &  Coke  Co.,  66  Ind., 

396;  Indianapolis  vs.  Consumers  Gas  Trust  Co.,  140  Ind.r 
107. 

3.  Sewickley  Sahool  Dist.  vs.  Ohio  Valley  Gas.  Co.,  154  Pa.,  539; 

25Atl.,868. 

4.  Newark  Gas  &  Fuel  Co.  vs.  Newark,  7  Ohio  N.  P.,  76. 


246  Construction  of  Ordinance  as  to  Supply. 

per  lamp,  and  an  additional  sum  per  lamp  as  will  be  equal 
to  the  taxes  paid  by  the  gas  company,  if  the  city  is  fully 
paid  by  the  services  rendered  and  it  is  not  void  as  a  mode 
to  exempt  from  taxation  which  is  prohibited.1  Although 
the  city  and  the  gas  company  do  not  fix  the  price  to  be 
paid  for  gas  for  a  certain  year,  the  gas  company  can 
recover  the  value  of  the  gas  consumed  by  the  city  since 
it  is  within  the  power  of  the  city  to  light  its  streets  by 
contract  so  it  will  be  liable  on  an  implied  contract.2 

SEC.  3.  CONSTRUCTION  OF  AN  ORDINANCE  TO  FUR- 
NISH GAS  TO  A  CITY;  CANNOT  MAKE  A  CONTRACT  TO 
EXTEND  BEYOND  THE  PERIOD  FIXED  BY  LAW;  BUT  CAN 
EXTEND  THE  PERIOD  DURING  WHICH  GAS  is  TO  BE  FUR- 
NISHED AFTER  THE  CONTRACT  is  MADE — MAY  COMPEL 
THE  COMPANY  TO  FURNISH  THE  GAS. — Where  an  ordi- 
nance provided  that  the  gas  company  shall  furnish  gas 
to  a  city  at  two-thirds  the  cost  of  the  lowest  average 
price  which  private  individuals  must  pay,  in  five  cities 
named  in  the  ordinance,  the  price  to  be  paid  by  the  city 
is  to  be  found  by  adding  the  lowest  cost  for  gas  in  the 
five  cities  and  then  dividing  the  sum  of  the  lowest  cost 
in  the  five  cities  by  five,  and  then  taking  two-thirds  of 
the  result  obtained  by  such  division  and  the  quotient 
will  be  the  price  to  be  paid  for  gas  under  the  ordi- 
nance.8 So  under  an  ordinance  which  provided  that  a 
:gas  company  shall  furnish  "gas  of  a  quality  at  least 
•equal  to  and  at  rates  as  favorable  as  that  furnished"  by 
a  gas  company  to  another  city,  the  price  is  to  be  deter- 
mined by  the  price  charged  when  the  gas  is  used  by  the 
other  city  and  not  at  the  price  charged  when  the  ordi- 
nance was  passed  or  contract  was  made  with  the  gas 
company,  and  if  the  other  city  reduces  the  price  of  gas, 
the  gas  company  cannot  recover  more  than  is  charged 
by  the  company  at  the  reduced  price,  though  less  was 

1.  Carterville  Imp.,  Gas  &  W.  Co.  vs.  Carterville,  89  Ga.,  683;  16 

S.  E.,  25. 

2.  Harlam  Gas  Light  Co.  vs.  New  York,  32  N.  Y.,  309. 

3.  Cincinnati  vs.  Cincinnati  Gas  Light  and  Coke  Co.,  53  Ohio  St., 

249;  41  N.  E.,239. 


Construction  of  Ordinance  as  to  Supply.  247 

charged  than  when  the  contract  was  made.  In  such  a  case 
the  rates  vary  as  do  the  rates  in  the  city  or  cities  named 
in  the  ordinance. ' 

Under  an  ordinance  which  leaves  it  discretionary 
with  the  city  council  as  to  the  amount  of  gas  which  shall 
be  used,  the  city  is  not  bound  to  take  and  pay  for  any 
gas;2  but  where  the  ordinance  provided  that  the  city 
shall  take  all  the  gas  from  a  company  which  shall  be 
used  in  its  offices,  buildings,  and  street  lamps,  for  ten 
years,  and  provided  that  the  city  had  the  right  to  dis- 
continue the  use  of  gas  lamps  in  the  business  district 
after  a  certain  time  less  than  ten  years  and  change  to 
electric  light,  in  such  business  district;  and  also  to  dis- 
continue the  use  of  lamps  in  the  other  parts  of  the  city 
temporarily  or  permanently,  the  city  under  the  ordi- 
nance had  no  right  to  use  other  means  to  light  the  streets 
in  parts  of  the  city  outside  the  business  district  than 
gas;  and  if  the  city  chooses  to  light  the  streets,  it  must 
take  gas  from  the  gas  company  to  light  them.3  Where  a 
city  reserved  the  right  to  substitute  electricity  for  gas, 
and  a  gas  company  had  the  right  to  furnish  the  elec- 
tricity at  a  price  to  be  agreed  upon  by  both  parties,  and 
the  city  determined  upon  a  substitution  and  the  gas  com- 
pany did  not  offer  to  furnish  the  electricity  at  a  price 
which  it  would  reasonably  be  worth,  the  city  has  a  right 
to  receive  bids  from  other  parties.4  A  gas  company 
which  furnished  gas  to  a  city,  under  a  statute,  at  so  much 
annually  per  lamp,  burning  from  sunset  to  sunrise,  and 
the  gas  lamps  to  consume  a  certain  amount  of  gas  per 
hour  will  be  entitled  to  full  compensation  from  the  city, 
allowed  under  the  statute,  though  the  full  amount  of  gas 
was  not  furnished  as  required  by  statute,  and  the  lights 

1.  Decatur  Gas  Light  Co.  vs.  City  of  Decatur,  120  111.,  67;  Wor- 

cester Gaslight  Co.  vs.  Worcester,  110  Mass.,  353. 

2.  Gaslight  &  Coke  Co.  vs.  New  Albany,  156  Ind.,  406;  59  N.  E., 

176. 

3.  Capital  City  Gaslight  Co.  vs.  Des  Moines,  93  la.,  547;  61  N. 

W.,  1066. 

4.  Gaslight  and  Coke  Co.  vs.  New  Albany,  139  Ind.,  660;  39  N. 

E.,462. 


248  Sale  of  Franchise  Not  Valid. 

were  insufficient,  where  gas  company's  pipes  were  clogged 
on  account  of  the  extreme  cold  weather  and  frosts  accu- 
mulating in  the  pipes. *  Contracts  by  a  city  to  light  its 
streets  cannot  extend  beyond  the  period  fixed  by  stat- 
ute, and  when  a  city  makes  such  a  contract  beyond  the 
period  allowed  by  statute,  the  same  is  void  even  for  the 
period  for  which  the  city  could  make  the  contract,  and  a 
city  may  discontinue  the  use  of  lights  furnished  under 
such  a  contract  and  will  not  be  liable  thereafter  for  dam- 
ages for  not  using  the  same;8  but  where  a  city  made  a 
contract  with  a  gas  company  to  furnish  gas  to  a  city  and 
before  the  gas  company  commenced  to  furnish  the  gas, 
the  town  extended  the  period  for  which  the  company  is  to 
furnish  gas,  the  extension  is  not  void  against  public  pol- 
icy, where  the  town  is  authorized  by  statute  to  light  its 
streets;  and  no  fraud  is  implied  in  such  a  contract  be- 
cause the  town  cannot  decrease  the  number  of  lamps 
during  the  term  the  company  is  to  furnish  gas.3  Where 
a  city  makes  a  contract  with  a  gas  company  to  furnish 
gas  the  city  has  a  right  to  compel  the  gas  company  to 
furnish  the  gas  as  provided  in  the  contract.4  Where 
the  state  law  gives  the  city  the  power  to  contract  to 
light  the  city  for  a  period  of  ten  years  a  contract  to 
light  the  city  for  ten  years  to  commence  in  six  months  is 
void  because  it  extends  beyond  the  period  fixed  by  law.5 

SEC.  4.  THE  RIGHTS  AND  FRANCHISES  OF  A  GAS 
COMPANY  CANNOT  BE  SOLD  OR  LEASED  OR  MANAGED 
BY  OTHER  THAN  THE  GAS  COMPANY  WITHOUT  THE  CON- 
SENT OF  THE  LEGISLATURE— THE  PLANT  MAY  BE  MORT- 
GAGED.— Where  a  gas  company  is  authorized  by  its  char- 
ter to  engage  in  furnishing  gas  to  the  public  and  was 

1.  Re,  Richmond  Gas  Co.  (1893),  1  Q.  B.,  56. 

2.  Gas  Light  and  Coke  Co.  of  New  Albany  vs.  City  of  New  Al- 

bany, 156  Ind.,  406;  59  N.  E.,  176. 

3.  Parfit   vs.  Kings  County  Gas  &  Illuminating  Co.,  38  N.  Y. 

Supp.  466. 

4.  Toledo  vs.  Northwestern  Ohio  Nat.  Gas  Co.,  5  Ohio  C.  C.,  557; 

Williams  vs.  Mutual  Gas  Co.,  52  Mich.,  499;  50  Am.  Rep., 
266. 

5.  City  of  Chillicothe  vs.  Logan,  etc.,  Gas  Co.,  8  Ohio  N.  P.,  88. 


Sale  of  Gas  Plant  Void.  249 

granted  the  right  to  lay  its  pipes  in  the  streets  for  that 
purpose,  the  company  is  engaged  in  a  business  which  re- 
quires of  it  public  services, '  and  a  gas  company  cannot 
sell,  or  transfer  the  powers  granted  to  it  by  the  state 
without  express  legislative  authority.8  So  where  a  gas 
company  entered  into  a  contract  with  another  company, 
not  to  lay  pipes  on  the  streets  the  contract  is  void,  be- 
cause it  is  disabling  itself  by  contract  from  performing 
a  duty  to  the  public;8  nor  can  a  gas  company  make  the 
convenience  and  service  to  the  public  by  such  contracts 
subservient  to  its  own  private  interests;4  nor  does  a 
statute  authorizing  the  owner  of  the  franchise  to  furnish 
light  permit  it  to  lease  its  plant,  hence  a  lease  so  made 
is  void  as  against  public  policy  and  no  recovery  can  be 
had  against  the  lessee  for  a  net  sum  agreed  to  be  paid  by 
him  to  the  lessor.5  The  rule  does  not  apply  to  a  mort- 
gage on  the  property  of  a  gas  company  engaging  in 
furnishing  gas  to  the  public,  and,  to  be  valid,  no  express 
authority  to  mortgage  need  be  given;6  and  where  a  stat- 
ute, in  general  terms,  gives  corporations  power  to  mort- 
gage their  property,  a  corporation  which  furnishes  light 
to  a  city  may  mortgage  all  its  property  and  easements.7 
So  where  the  owner  of  a  gas  plant  is  prohibited  by  stat- 
ute, without  the  consent  of  the  legislature,  from  selling 
its  franchises,  or  from  making  a  lease  of  the  plant,  or 
from  making  a  contract  with  another  party  to  operate 
the  plant,  the  statute  is  not  violated  by  an  agreement  of 

1.  Louisville  Gas  Co.  vs.  Citizens  Gas  Co.,  115  U.  S.,  683;  Gibbs 

vs.  Consolidated  Gas  Co.,  130  U.  S.,  396;  City  of  St.  Louis 
vs.  St.  Louis  Gas  Light  Co.,  70  Mo.,  69;  Shephard  vs.  Mil- 
waukee Gas  Light  Co.,  6  Wis.,  539. 

2.  Chicago  Gas  Light  Co.  vs.  Peoples  Gas  Light  Co.,  121  111., 541. 

3.  City  of  St.  Louis  vs.  St.  Louis  Gas   Light  Co.,  70  Mo.,  69; 

Chicago  Gas  Light  Co.  vs.  Peoples  Gas  Light  Co.,  121  111., 
530. 

4.  Gibbs  vs.  Consolidated  Gas  Co.,  130  U.  S.,  396. 

5.  Vesalia  Gas  &  Electric  Light  Co.  vs.  Sims,  104  Cal.,  326;  37 

Pac.,  1042;  42  Am.  St.  E.,  105. 

6.  Hunt  vs.  Memphis  Gas  Co.,  95  Tenn.,  136;  31  S.  W.,  1006. 

7.  Pumphrey  vs.  Threadgill,  87  Tex.,  573;  30  S.  W.,  356;  28  S. 

W.,  450. 


250  Lease  of  Gas  Plant  Owned  by  a  City. 

the  owner  of  the  gas  plant  with  another,  that  the  latter 
would  put  in  a  new  process  and  pay  a  certain  dividend 
to  the  owner,  and  that  the  owner  of  the  process  would 
have  the  surplus  after  paying  the  dividend,  and  that  the 
owner  of  the  plant  would  appoint  a  manager  to  be  ap- 
proved by  the  owner  of  the  process  as  an  agreement 
leaves  the  plant  in  control  of  the  owner.1 

SEC.  5.  A  CITY  OWNING  A  GAS  PLANT  MAY  LEASE 
THE  PLANT  AND  MAY  STIPULATE  IN  THE  LEASE  TO  DO  OR 
NOT  TO  DO  CERTAIN  THINGS — So  A  GAS  COMPANY  MAY 
SELL  OR  LEASE  WHEN  THE  STATUTE  PERMITS. — Where 
a  city  was  the  owner  of  a  gas  plant  which  supplied  the 
city  with  light  and  also  its  inhabitants,  a  lease  of  the 
plant  to  another  was  upheld.  The  court  held  that  the 
gas  works  was  owned  by  the  city  as  a  business  proposi- 
tion and  there  was  no  duty  imposed  by  statute  or  common 
law  on  a  city  to  furnish  lights  for  street  purposes  or  to 
private  consumers,  and  to  supply  gas  for  those  purposes 
was  not  a  municipal  duty,  so  the  city  could  transfer,  by 
lease,  its  gas  plant  to  another,  and  in  so  doing  did  not 
delegate  its  municipal  duty.2  And  where  the  city  is  the 
owner  of  a  plant  for  the  supply  of  gas  to  the  city,  such 
city  may  sell  the  plant  under  a  power  given  by  statute 
to  sell  and  dispose  of  its  real  and  other  property;3  and 
where  a  city  is  authorized  to  provide  its  streets  with 
lights,  the  city  may  confer  such  a  right  on  an  independ- 
ent company  and  give  such  company  the  use  of  its 
streets,4  and  where  the  city  is  the  owner  of  a  gas  plant, 
the  city  may  not  only  sell  its  plant,  to  a  private  com- 
pany, but  may  bind  the  municipality,  in  the  contract  of 
sale,  to  pay  a  greater  sum  per  light  as  will  be  equal  to 
the  amount  of  taxes  paid  by  the  purchasing  company  in 
the  event  that  the  city  had  no  right  to  exempt  the  com- 

1.  Maryborough  Gas  Light  Co.  vs.  Neal,  166  Mass.,  217;  44  N.  E., 

139. 

2.  Baily  vs.  Philadelphia,  184  Pa.,  594;  39  Atl.,  494;  39  L.  R.  A., 

837. 

3.  Thompson  vs.  Neymer,  59  Ohio  St.,  486;  52  N.  E.,  1024. 

4.  Newport  vs.  Newport  Light  Co.,  84  Ky.,  166. 


Gas  Trustees.  251 

pany  which  purchased  the  plant  from  taxation.1  So 
where  the  city  leased  its  plant  and  provided  in  the  lease 
that  the  city  will  not  engage  in  the  business  again,  such 
a  stipulation  is  valid  and  does  not  create  a  monopoly 
where  the  city  does  not  possess  the  right  to  give  an  ex- 
clusive privilege,  because  that  right  is  vested  in  the  leg- 
islature;2 nor  can  the  lease  be  objected  to  by  a  bond- 
holder where  the  general  credit  of  the  city  was  pledged  for 
the  bonds  issued  in  paying  for  the  plant;3  but,  where  the 
revenues  of  the  plant  are  pledged  for  the  payment  of  the 
bonds,  a  sale  or  a  lease  would  not  be  valid  on  an  objec- 
tion of  a  bond-holder. 4  And  where  a  transfer  is  permitted 
by  law  and  there  was  a  provision  in  the  contract  of  sale 
that  the  purchasing  company  shall  fulfill  its  contract  to 
furnish  gas  to  the  extent  that  the  same  can  be  fulfilled 
from  the  property  and  lines  of  the  company,  the  purchas- 
ing company  is  bound  to  make  all  necessary  connection 
for  the  furnishing  of  gas,  where  the  connections  are  those 
customarily  made.-  Where  a  gas  company  purchased 
the  franchise  of  another  company  which  had  the  exclu- 
sive franchise,  the  purchasing  company  acquires  the  ex- 
clusive rights  of  that  company,  and  another  company  can 
not  do  business  in  the  same  city;6  but  such  exclusive 
rights  do  not  extend  to  natural  gas  companies  in  Penn- 
sylvania.7 

SEC.  6.  GAS  TRUSTEES  OPERATING  GAS  PLANT — 
POWER  TO  PLEDGE  CREDIT  OF  THE  CITY  OR  TO  EMPLOY 
ONE  OF  THEIR  OWN  MEMBERS;  POWER  OF  CITY  COUNCIL 
TO  MAKE  CONTRACT  IN  WHICH  THE  MEMBERS  ARE  INTER- 

1.  Frankford  vs.  Capital  Gas  &  E.  L.  Co.,  16  Ky.  L.  R.,  780-  29 

S.  W.,855. 

2.  Baily  vs.  Philadelphia,  184  Pa.,  594;  39  Atl.,  494. 

3.  Baily  vs.  Philadelphia;  184  Pa.,  594;  39  Atl.,  494. 

4.  Western  Sav.  Fund  Soc.  vs.  Philadelphia,  31  Pa.,  175;  72  Am. 

Dec.,  730. 

5.  Pittsburg  Carbon  Co.  vs.  Philadelphia,  130  Pa.,  428:  18  Atl 

732. 

6.  South  Side  Gas  Co.  vs.  Southern  Ilium.  Co.,  18  Pa.  Co.  Ct., 

529;  People's  Gas  Co.  vs.  Hale,  94  Ills.,  App.  406. 

7.  Warren  Gas  Light  Co.  vs.  Pennsylvania  Gas  Co.,  161  Pa.,  510; 

29  Atl.,  101. 


252  May  Not  be  Interested  in  Contracts. 

ESTED— LEGALITY  OF  SUCH  CONTRACTS. — Trustees  hav- 
ing charge  of  gas  plants  operated  in  the  interest  of  a 
municipality  have  no  power  to  pledge  the  credit  of  the 
city  for  machinery  used  to  operate  the  gas  works,  where 
the  statute  provided  that  certain  moneys  shall  be  pro- 
vided by  the  city  council  for  that  purpose,  and  funds 
realized  from  the  operation  of  the  plant  shall  be  used  for 
current  expenses,  but  the  trustees  have  a  right  to  use  the 
funds  realized  from  the  operation  of  the  plants  for  that 
purpose,  and  their  right  is  not  restricted  because  of  a 
provision,  in  the  statute,  that  no  obligation  shall  be  in- 
curred, by  any  municipal  officer,  in  behalf  of  a  town,  or 
city,  until  a  certificate  is  received  from  the  auditor,  that 
the  money  is  on  hand  to  be  used  for  the  purpose  contem- 
plated. l  Municipal  trustees  of  the  gas  works,  which  are 
owned  by  the  city,  have  no  power  to  employ  one  of  their 
own  members  to  supervise  the  property  of  the  city,  in 
the  territory  where  the  gas  is  obtained  and  where  the 
leased  lands  held  by  the  city  are  located,  where  the  stat- 
ute provided  that  no  municipal  officer  shall  be  interested 
directly  or  indirectly  in  the  work  of  a  city  under  a  pen- 
alty.2 And  another  section  provided  that  such  officer  can 
not  be  interested  directly  or  indirectly  until  the  expira- 
tion of  one  year  after  the  term  of  office  had 'expired,  so  a 
former  trustee  whose  office  just  expired,  cannot  be  ap- 
pointed manager  of  such  works  until  the  expiration  of 
one  year.3  So  where  a  member  of  the  city  council  who 
was  a  stockholder  and  also  secretary  and  treasurer  of 
the  corporation  which  contracted  to  light  the  streets, 
such  a  contract  is  void  where  it  is  prohibited  by  law;4 
and  such  a  contract  may  be  canceled  at  the  suit  of  any 
tax-payer;8  but  when  the  contract  is  canceled,  the  city 
must  pay  what  the  gas  was  worth  not  to  exceed  the  con- 
tract price.6  The  same  rules  and  restriction  apply  to 

1.  Kerr  vs.  Belfontaine,  59  Ohio  St.,  446;  52  N.  E.,  1024. 

2.  Findlay  vs.  Parker,  17  Ohio  C.  C.,  294. 

3.  Findlay  vs.  Parker,  17  Ohio  C.  C.,  294. 

4.  Grand  Island  Gas  Co.  vs.  West,  28  Neb.,  852;  45  N.W.,  242. 

5.  Grand  Island  Gas  Co.  vs.  West,  28  Neb.,  852;  45  N.W.,  242. 

6.  Grand  Island  Gas  Co.  vs.  West,  28  Neb.,  852;  45  N.W.,  242. 


Price  to  be  Paid  Not  an  Indebtedness.  253 

both  gas  and  water  companies,  so  where  a  majority  of 
the  council  are  members  of  the  water  company,  such  a 
contract  is  absolutely  void.1  But  where  a  gas  company 
received  its  charter  from  the  state  and  is  compelled  to 
furnish  gas  to  all  consumers  who  may  request  the  use  of 
gas,  a  city  which  used  gas  may  be  compelled  to  pay  for- 
it  though  the  mayor  of  the  city  is  the  president  of  the  gas 
company  and  also  a  stockholder,  and  the  charter  of  the 
city  prohibits  such  officer  from  being  interested  directly 
or  indirectly  in  contracts  with  the  city,  and  makes  such 
contract  void,  because  the  contract  to  furnish  gas  to  the 
city  is  one  created  by  law  and  not  by  the  parties.2 

SEC.  7.  CONTRACT  BY  A  CITY  TO  FURNISH  LIGHTS 
HAS  BEEN  HELD  BY  SOME  COURTS  TO  CREATE  A  MUNICI- 
PAL INDEBTEDNESS  BUT  THE  GREATER  NUMBER  HOLD 
THAT  IT  DOES  NOT. — Where  a  city  charter  provides  that 
no  city  shall  enter  into  any  obligation  for  the  payment 
of  money  "without  special  authority  of  law"  in  excess  of 
the  revenues  which  may  be  used  in  the  payment  of  the 
debt,  a  city  cannot  make  a  contract  for  a  period  of  years 
for  the  lighting  of  its  streets  and  buildings  unless  the 
city  has  the  money  on  hand  to  pay  for  the  lighting  dur- 
ing the  entire  period  or  the  taxes  are  actually  levied  to 
meet  the  payment  for  the  entire  term  and  other  expenses 
for  the  year.  In  such  a  case  the  contract  may  be  made.3 
And  when  a  city  contracts  an  indebtedness  for  the  pay- 
ment of  rents  for  hydrants  for  a  long  period  of  time,  the 
entire  amount  to  be  paid  is  to  be  considered  in  ascertain- 
ing the  indebtedness  of  the  city.4 

The  weight  of  authority  is  that  the  entire  period  is 
not  to  be  taken  into  consideration  in  ascertaining  the  in- 
debtedness of  a  city  under  such  contracts,  but  contracts 
of  this  character,  when  a  city  makes  a  contract  to  light 
the  city  for  a  period  of  years  and  the  cost  for  lighting  to 
be  paid  each  year  for  the  lights  to  be  furnished  for  that 

1.  Milford  vs.  Milford  Water  Co.,  124  Pa.,  610;  17  Atl.,  185. 

2.  Capital  Gas  Co.  vs.  Young,  109  Cal.,  140;  29  L.  B.  A.,  463. 

3.  Kihchli  vs.  Minn.  Brush  Elec.,  58  Minn.,  418;  59  N.  W.,  1088. 

4.  Beard  vs.  Hopkinsville,  95  Ky.,  239;  23  L.  R.  A.,  402  and  note. 


254  Life  of  Corporation. 

year,  do  not  create  a  municipal  indebtedness. 1  So  a  peti- 
tion of  the  holders  of  taxable  land  is  not  necessary  to  the 
validity  of  the  contract,  since  the  contract  does  not  cre- 
ate a  municipal  indebtedness.8  A  statute  prohibiting 
such  contracts  has  no  application  where  a  city  has  the 
power  to  light  the  streets  under  another  statute.3  So 
where  a  contract  was  made  with  a  gas  company,  to  light 
the  streets  of  a  city  for  a  period  of  thirty  years  and  the 
city  was  to  pay  a  certain  amount  annually  for  each  lamp, 
and  the  contract  specified  for  a  number  of  lamps,  and  if 
the  whole  sum  which  was  to  be  paid  by  the  city  was  to 
be  considered  as  an  indebtedness,  the  city  would  incur 
an  indebtedness  in  excess  of  the  constitutional  limita- 
tion, but  the  court  held  that  as  the  contract  provided  to 
be  paid  monthly,  the  debt  was  not  incurred  until  the  end 
of  each  month  and  the  amounts  which  might  become  due 
did  not  constitute  an  indebtedness. 4 

SEC.  8.  LIFE  OF  A  CORPORATION — LAWS  OR  ORDI- 
NANCES CONSTRUED  STRICTLY  AGAINST  THE  CORPORA- 
TION— RIGHT  TO  USE  STREETS  TO  SUPPLY  GAS  THERE- 
AFTER.— Where  a  gas  company  was  organized  under  a 
special  act  of  the  legislature,  and  one  section  of  the  act 
of  incorporation  provided  that  the  gas  company  would 
have  "perpetual  succession,'  and  another  section  of  the 
act  gave  the  corporation  an  exclusive  right  to  manufac- 
ture gas  in  a  certain  county  for  a  period  of  thirty  years, 
and  the  general  law  of  the  state,  in  force  at  the  time, 
limited  the  life  of  such  corporations  to  a  period  of  twenty 
years,  the  court,  in  construing  the  statute,  applied  the 
rule  that,  in  the  construction  of  special  legislative  grants, 
all  doubts  are  to  be  solved  in  favor  oi  the  state,  or  pub- 

1.  Seward  vs.  Liberly,  142  Ind.,  551;  42  N.  E.,  39. 

2.  Foland  vs.  Frankton,  142  Ind.,  546;  41  N.  E.,  1031. 

3.  Leadville  Ilium.  Gas  Co.  vs.  Leadville,  9  Colo.  App.,  400;  49 

Pac.,268. 

4.  East  St.  Louis  vs.  East  St.   Louis  Light  Gas  &  Coke    Co., 

98  111.,  415;  N.  0.  vs.  Gas  Light  Co.,  42  La.  Ann.;  Saleno 
vs.  Neosho,  127  Mo.,  627;  Kiehl  vs.  South  Bend,  44  U.  S. 
App.,  687;  76  Fed.  R.,  921;  McBean  vs.  Fresno,  112  Cal., 
159. 


Compulsory  Service.  255 

lie,  and  against  the  state's  grantees,  and  liberally  in 
favor  of  the  public,1  so  the  corporation's  right  to  manu- 
facture gas  and  distribute  the  same,  did  not  extend  be- 
yond the  period  of  thirty  years,  and  that  the  company 
had  no  right  to  exercise  the  rights  of  a  corporation 
thereafter.2  A  corporation  whose  time  is  limited  is  at 
an  end  on  the  expiration  of  the  time,  and  its  existence  is 
terminated  as  absolutely  as  death  terminates  the  life  of 
a  natural  person;3  but  where  a  city  gave  a  gas  company 
a  franchise,  and  the  franchise  extended  beyond  the  life 
of  the  corporation,  and  the  contract  which  gave  the  com- 
pany the  franchise  provided  that  another  company,  which 
had  a  right  to  fulfill  the  contract,  would  fulfill  the  con- 
tract, and  all  its  stipulations,  and  the  latter  company 
entered  upon  the  fulfillment  of  the  contract,  the  contract 
thus  made  will  be  binding  on  the  city,  though  it  extends 
beyond  the  life  of  the  corporation  which  made  it. 4 

SEC.  9.  COMPULSORY  SERVICE  BY  GAS  COMPANIES. — 
A  city  ordinance  which  provided  that  any  corporation 
laying  pipes  on  the  streets  of  a  city  shall  furnish  gas  to 
all  customers  along  the  line  who  apply  for  gas,  is  valid, 
and  is  within  the  power  of  the  city  to  impose  on  a  com- 
pany in  granting  the  company  a  right  to  lay  its  pipes  in 
the  street.5  No  restrictions  or  contract  need  be  made 
with  a  company  or  person  who  deals  in  gas  that  it  will  be 
furnished  to  persons  who  may  demand  it,  for  such  a  duty 
is  imposed  on  all  gas  companies  who  receive  a  franchise 

1.  State  ex  rel.  Walker  vs.  Payne,  129  Mo.,  468;  31  S.  W.,  796; 

33  L.  R.  A.,  576;  Black  vs.  Delaware  &  R.  Canal  Co.,  24 
N.  J.  E.,  474;  Townsend  vs.  Brown,  24  N.  J.  L.,  87;  Par- 
ker vs.  Great  Western  Ry.  Co.,  7  Mann.  &  G.,  288;  Central 
Transp.  Co.  vs.  Pullman  Palace  Car  Co.,  139  U.  S.,  49. 

2.  State  ex  rel.  Walker  vs.  Payne,  129  Mo.,  468. 

3.  Asheville,  etc.,  vs.  Aston,  92  N.  C.,  578;  Sturges  vs.  Vander- 

bilt,  73  N.  Y.,  384;  Supreme  Lodge  of  K.  P.  vs.  Weller,  83 
Va.,605;  25  S.  E.,  891. 

4.  State,  St.  Louis  vs.  Laclede  Gas  Light  Co.,  102  Mo.,  472;  15 

S.  W.,383;  14S.W.,797. 

5.  Rushvillevs.  Rushville  Natural  Gas  Co.,  132  Ind.,575;  28  N.E., 

853. 


256  Mandamus. 

from  the  state  and  a  right  to  lay  pipes  on  the  streets  and 
collect  tolls  since  the  companies  receive  special  privi- 
leges from  the  state  and  city,  and  their  business  becomes 
a  public  business,  and  they  must  serve  the  public  when 
requested.1  So  when  a  person's  house  is  properly 
plumbed  and  his  property  abuts  on  the  street,  where  a 
gas  company  has  its  mains,  the  company  is  bound  to  fur- 
nish gas  on  demand  because  such  companies  owe  a  duty 
to  supply  gas  to  all. 2  And  no  excuse  is  furnished  by  the 
company  that  the  applicant  is  already  supplied  by  an- 
other company. s  So  when  a  gas  company  refuses  to  fur- 
nish gas  upon  being  requested  to  do  so,  and  the  applicant 
has  complied  with  the  reasonable  regulations  of  the  com- 
pany, the  company  may  be  compelled  by  mandamus  to 
furnish  gas. 4  There  are  early  cases  in  this  country  which 
hold  that  gas  companies  need  not  furnish  gas  to  con- 
sumers who  may  apply  for  it  unless  the  charter  or  ordi- 
nance so  provides.5  But  if  a  gas  company  using  the  streets 
belonging  to  the  public  is  not  engaged  in  a  public  busi- 
ness, such  companies  have  no  right  to  use  street  for  pri- 
vate purposes.  This  doctrine  cannot  be  accepted  as 
good  law  at  the  present  time.6  Gas  companies,  like  tele- 

1.  Williams  vs.  Natural  Gas  Co.,  52  Mich.,  499;  50  Am.  R.,  266. 

2.  Portland  Natural  Gas  &  Oil  Co.vs.  State  ex  rel.  Keen,  135  Ind., 

54;  34  N.  E.,  818;  21  L.  E.  A.,  639;  Shepherd  vs.  Milwau- 
kee Gas  Light  Co.,  6  Wis.,  539;  Bait.  Gas  Light  Co.  vs. 
Calliday,  25  Md.,  1;  New  Orleans  Gas  Light  &  Banking 
Co.  vs.  Paulding,  12  Rob.  La.,  378;  New  Orleans  Gas  Light 
Co.  vs.  Louisiana  Light  &  H.  P.  Mfct.,  115  U.  S.,  650. 

3.  Portland  Nat.  Gas  &  0.  Co.  vs.  State,  Keen,  135  Ind.,  54. 

4.  Portland  Nat.  Gas  &  O.  Co.  vs.  State,  Keen,  135  Ind.,  54; 

People  vs.  Manhattan  Gas  Light  Co.,  45  Barb.,  136;  Wil- 
liams vs.  Mutual  Gas  Co.,  52  Mich.,  499;  Bloomfield  &  R. 
Nat.  Gas  Light  Co.  vs.  Richardson,  63  Barb.,  437;  Vincent 
vs.  C.  &  A.  Ry.,  49  111.,  33;  People  vs.  New  York  L.  E.  & 
W.  Ry.,104N.  Y.,58. 

5.  Com.  vs.  Lowell  Gas  Light  Co.,  12  Allen,  75;  McCune  vs.  Nor- 

wich City  Gas  Co.,  30  Conn.,  521;  Paterson  Gas  Light  Co. 
vs.  Brady,  27  N.J.  L.,  245. 

6.  Amstead  vs.  Morris  Aqueduct  Prop.,  47  N.  J.  L.,  311;  N.  0. 

Gas  Light  Co.  vs.  La.  Light  &  H.,  etc.,  115  U.  S.,  650. 


Damages  for  Not  Supplying  Gas.  257 

graph  and  telephone  companies,  and  common  carriers, 
have  no  selection  of  their  patrons,  and  such  persons  and 
corporations  enjoying  public  franchises,  and  engaged  in 
a  public  employment  are  held,  in  return,  to  owe  a  duty 
to  the  public  as  well  as  to  the  individuals  of  that  public, 
who,  in  compliance  with  established  customs  or  rules^ 
make  demand  for  the  beneficial  use  of  the  privileges  and 
advantages  to  the  public  by  reason  of  the  aid  so  given 
by  public  authority,  and  must  serve  all  persons  who 
make  proper  application  for  such  services  upon  payment 
for  the  services  rendered.1  A  gas  company  was  held 
not  bound  to  furnish  gas  to  a  person  although  the  stat- 
ute provided  that  gas  must  be  furnished  to  all  persons 
upon  written  application  along  the  line  where  a  meter 
rent  was  charged  and  the  consumer  fails  to  pay  it,  in  case 
the  customer  depended  upon  electric  light  principally. 8 

SEC.  10.  LIABILITY  FOR  NOT  FURNISHING  GAS. — A 
gas  company  is  liable  for  the  penalty  provided  for  in  the 
statute,  for  failure  to  connect  its  mains  with  the  business 
place  and  residence  of  a  person  who  requests  that  the 
connection  be  made  where  the  supply  was  discontinued 
because  of  a  dispute  between  the  customer  and  the  com- 
pany;3 but  where  the  gas  was  to  be  furnished  at  two  dif- 
ferent places,  the  company  will  not  be  liable  for  a  double 
penalty.4  So  where  a  natural  gas  company  had  its  pipes 
on  the  streets  of  a  city  and  entered  into  a  contract  with 
a  prospective  customer  to  furnish  gas  for  fuel  and  light 
for  a  stated  period,  and  the  customer,  relying  on  his  con- 
tract, with  the  company,  made  no  other  provision  to  heat 
his  dwelling  house,  which  was  occupied  by  the  customer 
and  his  wife  and  two  children,  and  during  the  winter, 
when  the  weather  was  cold,  and  when  the  customer  could 
not  procure  other  fuel,  the  company  failed  to  furnish  gas 
for  fuel  and  one  of  the  customer's  children  died  in  conse- 

1.  Coy  vs.  Indianapolis  Nat.  Gas  Co.,  146  Ind.,  655;  46  N.  E.,  17; 

36  L.  R.  A.,  535. 

2.  Smith  vs.  Capital  Gas  Co.,  132  Cal.,  209;  64  Pac.,  258. 

3.  Jones  vs.  Rochester  Gas  &  Electric  Light  Co.,  7  App.  Div.,465. 

4.  Jones  vs.  Rochester  &  E.,  168  N.Y.,  65;  60  N.E.,  1044. 


258  Extent  of  Liability. 

quence  of  the  house  being1  cold,  and  the  customer  brought 
an  action  for  damages  against  the  company,  the  company 
was  held  bound  to  furnish  the  gas  independent  of  the 
contract  between  the  parties,  because  of  the  franchise  it 
enjoyed,  and  must  furnish  it  without  discrimination,  and 
the  failure  of  the  company  to  furnish  the  gas  was  a  tort, 
even  though  the  complaint  showed  that  the  company 
failed  to  perform  the  contract;  and  the  failure  to  perform 
the  contract  was  also  a  tort  and  the  action  being  in  tort, 
the  gas  company  was  liable  for  all  damages  traceable  to 
its  failure  to  furnish  gas  unless  the  person  was  negligent 
in  failing  to  procure  fuel  from  others  to  supply  his  home. 1 
So  where  a  heating  company  was  engaged  in  furnish- 
ing heat  to  the  public,  and  the  heat  was  shut  off  in  cold 
weather  and  a  member  of  the  family  had  been  sick,  but 
was  recovering,  but,  on  account  of  becoming  chilled,  for 
the  want  of  heat,  the  person  took  a  relapse  and  died,  and 
an  action  in  tort  was  brought  against  the  company  for 
causing  the  death,  the  company  was  held  liable  in  tort, 
though  there  was  an  existing  contract  to  furnish  heat 
for  the  house  of  the  person  who  died.8  Where  a  city  sup- 
plies water  to  its  inhabitants  for  private  use  and  made 
connections  with  the  greenhouse  of  a  private  consumer, 
and  the  city  permitted  the  pipes  to  be  frozen  in  cold 
weather,  and  the  city  could  have  prevented  the  pipes 
from  freezing,  and  the  greenhouse  was  damaged  for  the 
lack  of  water,  the  city  is  liable  in  an  action  in  tort  and 
the  damages  sustained  are  not  too  remote;3  and  the  same 
is  true  where  the  water  was  shut  off  purposely  to  enforce 
an  old  claim  against  a  former  tenant.4  So  where  a  gas 
company  contracted  with  a  glass  factory  to  furnish  the 
latter  sufficient  fuel  to  operate  the  factory  for  a  certain 
time,  and  the  gas  company  fails  to  perform  its  contract, 
the  company  was  held  liable  for  damages.  The  court  laid 

1.  Coy  vs.  Indianapolis  Nat.  Gas  Co.,  146  Ind.,  655;  46  N.  E.,  17; 

Merrimac  Riv.  Sav.  B.  vs.  City  of  Lowell,  152  Mass.,  556; 
10  L.  R.  A.,  122. 

2.  Hoehle  vs.  Allegheny  Heating  Co.,  5  Pa.  Super.  Ct.,  21. 

3.  Stock  vs.  Boston,  149  Mass.,  410;  21  N.E.,  811. 

4.  Merrimac  River  Sav.  Bank  vs.  Lowell,  152  Mass.,  556. 


When  Not  Liable.  259 

down  the  rules  to  ascertain  the  damages  as  follosw: 
Where  the  factory  is  a  new  undertaking  in  that  commun- 
ity, the  expenses  in  organizing  the  factory,  the  loss  while 
the  factory  was  idle  and  which  may  be  compensated  at 
the  fair  rental  value,  and  where  the  factory  has  no  rental 
value  the  interest  on  the  money  invested  in  the  factory, 
and  where  funds  have  been  laid  aside  to  operate  the  fac- 
tory, the  interest  on  such  money  while  it  was  not  used, 
and  where  men  had  to  be  procured  at  a  distance  and  their 
transportation  had  to  be  furnished  the  cost  of  transpor- 
tation, and  the  wages  paid  to  them  may  be  considered 
together  with  the  salaries  paid  to  officers.  *  And  where 
the  property  was  residence  property  and  where  the  sup- 
ply is  not  sufficient  and  the  gas  to  be  supplied  was  to  be 
equal  to  half  the  rent  paid  to  the  lessor  for  the  land  from 
which  the  gas  was  supplied,  the  measure  of  damages  is 
half  the  rental  for  the  proportion  of  the  year  the  gas  was 
not  furnished.*  So  a  gas  company  chartered  under  the 
laws  with  right  to  use  the  streets  for  the  conveyance  of 
gas  is  liable  to  an  applicant  for  gas  for  all  damages  when 
the  company  refused  to  furnish  gas  unless  the  applicant 
signed  an  application  which  contained  unreasonable 
stipulations  which  were  held  to  be  void.8 

SEC.  11.  WHEN  LIABILITY  DOES  NOT  ATTACH. — 
Where  stockholders  and  directors  of  a  gas  company 
make  a  contract  that  they  will  have  a  right  to  be  fur- 
nished gas  permanently  in  preference  to  the  public,  the 
company  is  not  bound  by  such  a  contract  as  all  consum- 
ers must  be  treated  alike  without  discrimination.4  So 
where  a  city  was  delinquent  in  paying  for  gas  already  fur- 
nished, the  city  cannot  compel  a  gas  company  to  incur 

1.  Paola  Gas  Co.  vs.  Paola  Glass  Factory,  56  Kan.,  614;  44  Pac., 

621. 

2.  Kokomo  Nat.  Gas  &  Oil  Co.  vs.  Albrecht,  18  Ind.  App.,  151; 

47  N.  E.,  682. 

3.  Shepherd  vs.  Milwaukee  Gas  Light  Co.,  15  Wis.,  318;  82  Ann. 

Dec.,  679. 

4.  Shoenberger  vs.  Equitable  Gas  Co.   (Pa.  C.  P.),  22  Pittsb., 

L.  J.  U.,  347;  Coy  vs.  Indianapolis  Nat.  Gas  Co.,  146  Ind., 
655;  46N.E.,17. 


260  Contract  to  Supply. 

further  expense  in  extending  its  mains  and  putting"  up 
gas  posts  and  lamps  to  supply  gas  for  lights  not  then  in 
use. '  So  a  gas  company  that  assumes  to  perform  the  con- 
tract of  another  company  is  not  bound  to  furnish  the 
customers  of  a  different  company  with  meters  and  appli- 
ances in  case  of  accident  to  such  appliances;2  and  a  gas 
company  would  have  a  right  to  refuse  to  supply  gas  to  a 
building,  where  it  is  made  up  of  several  apartments, 
such  as  several  flats  or  stores,  in  the  same  building, 
where  only  part  of  the  occupants  apply  for  gas  and  the 
other  occupants  would  not  permit  the  company  to  exam- 
ine the  plumbing  to  see  that  it  was  safe  so  no  one  would 
be  injured  or  property  be  destroyed  by  gas  escaping.3 
A  company  is  not  bound  to  furnish  gas  to  a  person  who 
uses  electric  light  furnished  by  another  company  and 
gas  would  be  used  only  in  case  of  accident  to  the  electric 
lights;4  or  when  gas  is  only  used  occasionally  and  elec- 
tric light  is  the  principal  means  of  illumination  a  person 
is  not  a  consumer  of  gas  and  it  need  not  be  furnished.5 

SEC.  12.  CONTRACT  TO  SUPPLY  GAS — LIMITATIONS 
IN  USE. — Where  a  consumer  of  gas  and  a  company  en- 
gaged in  supplying  the  same  enter  into  an  agreement 
that  the  gas  company  would  furnish  natural  gas  to  op- 
erate his  plant  as  long  as  the  gas  company  has  gas,  is  not 
void  for  indefiniteness,  although  the  consumer  uses  gas 
for  other  purposes  than  in  the  operation  of  his  plant.8 
And  under  a  provision  in  a  contract  that  a  gas  company 
will  furnish,  to  a  customer,  free  of  charge,  all  the  gas 
needed  in  his  residence  for  the  usual  purposes  and  also 
will  furnish  gas  for  two  street  lamps  and  gas  for  a  log 
in  his  library,  for  a  period  of  twenty  years,  is  not  void 

1.  Pensacola  Gas  Co.  vs.  Pensacola,  33  Fla.,  322;  14  So.,  826. 

2.  Fleming  vs.  Montgomery  Gas.  Co.,  100  Ala.,  657;  13  So.,  618. 

3.  Schmeer  vs.  Gas  Light  Co.,  147  N.  Y.,  529;  30  L.  R.  A.,  653. 

4.  Fleming  vs.  Montgomery  Gas  Co.,  100  Ala.,  657;  13  So.,  618. 

5.  Adams  Express  Co.  vs.  Cin.  Gas  Co.,  10  Ohio  Des.,  389. 

6.  Xenia  Real  Estate  Co.  vs.  Macy,  147  Ind.,  568;  47  N.  E.,  147; 

Whitman  vs.  Fayette  Fuel  Gas  Co.  139  Pa.,  492;  20  Atl., 
1062. 


Shutting  Off  Supply  of  Gas.  261 

because  it  is  not  sufficiently  specific;1  but  such  a  contract 
will  not  authorize  the  person  who  is  to  receive  the  gas 
to  waste  the  same,  and,  where  the  user  is  charged  with 
the  commission  of  waste,  the  court  will  fix  the  amount 
the  consumer  will  be  entitled  to  under  the  contract,  and 
the  consumer  will  not  be  permitted  to  exceed  the  amount 
allowed  by  the  court  to  be  used,  and  the  court,  in  fixing 
the  amount  of  gas  to  be  used,  will  restrict  the  use  to 
that,  as  it  existed,  when  the  contract  was  made,  although 
new  and  modern  appliances  can  be  substituted  for  those 
in  use  when  the  contract  was  made. 2 

SEC.  13.  SHUTTING  OFF  THE  SUPPLY  OF  GAS — AR- 
REARS— RULES. — Gas  companies  may  adopt  reasonable 
rules  governing  the  supply  of  gas  to  consumers,  and, 
among  them,  it  may  be  provided  that  the  company  may 
shut  off  the  supply  of  gas  to  persons  who  are  in  arrears 
in  the  payment  of  gas  consumed. 3  So  an  ordinance  which 
provided  that  when  the  consumer  does  not  pay  for  gas 
ten  days  after  the  bill  is  rendered  the  gas  may  be  turned 
off,  is  valid  as  a  reasonable  regulation.4  The  right  to 
shut  off  the  supply  of  gas  is  subject  to  many  restrictions. 
The  arrears  of  a  former  owner  or  occupant  of  the 
premises  will  not  authorize  the  company  to  shut  off  the 
supply  to  a  new  owner  or  occupant. 8  Or  where  a  corpo- 
ration is  suspended  and  receivers  are  appointed  by  the 
court,  the  receivers  are  regarded  as  new  tenants  and  do 
not  come  under  the  English  Gas  Act,  and  need  not  pay 
arrears  of  gas  rent  before  they  are  entitled  to  be  sup- 

1.  Graves  vs.  Key  City  Gas  Co.,  83  la.,  714;  50  N.  W.,  283. 

2.  Graves  vs.  Key  City  Gas  Co.,  93  la.,  470;  61  N.  W.,  937;  48 

Am.  and  E.  Civ.  Cases,  130. 

3.  Gas  Light  Co.  vs.  Colliday,  25  Md.,  1;  People  vs.  Manhattan 

Gas  Light  Co.,  45  Barb.,  136;  Tacoma  Hotel  Co.  vs.  Ta- 
coma  Light  &  Water  Co.,  3  Wash.,  316;  28  Pac.,  517;  14  L. 
R.  A.,  669;  Mackin  vs.  Portland  Gas  Co.,  38  Or.,  120;  61 
Pac.,  134;  62  Pac.,  20;  49  L.  R.  A.,  596. 

4.  Com.  Trustees,  etc.,  vs.  Philadelphia,  132  Pa.,  288;  19  Atl.,  136. 

5.  Merrimac  River  Sav.  Bank  vs.  City  of  Lowell,  152  Mass.,  556; 

26  N.  E.,97. 


262  Right  to  Shut  Off  Supply  of  Gas. 

plied,1  or  where  the  contract  provided  that  the  gas 
company  may  discontinue  "to  furnish  gas  to  any  prem- 
ises, the  owner  or  occupant  of  which  shall  be  indebted 
to  the  company  for  gas  or  fittings  used  upon  said  prem- 
ises, or  elsewhere"  and  the  contract  was  made  after  de- 
fault had  been  made  in  the  payment  for  gas  at  another 
place,  the  company  will  not  be  justified  in  shutting  off 
the  gas  on  account  of  the  former  default,2  or  where  the 
consumer  and  the  gas  company  enter  into  separate  con- 
tracts for  separate  houses  a  default  in  the  payment  in 
one  place  will  not  justify  the  shutting  off  of  the  gas  at 
another  place.8  And  where  there  is  a  dispute  about  the 
arrears,  the  gas  company  will  not  be  permitted  to  shut 
off  the  gas  pending  an  investigation  by  the  courts,4  or 
when  the  arrears  are  left  by  former  occupants,  a  gas 
company  is  not  authorized  to  turn  off  the  supply, B  but 
some  courts  hold  that  there  is  a  liability  on  the  part  of 
the  incoming  tenant  to  pay  or  the  gas  may  be  shut  off.8 

SEC.  14.  SUPPLY  OP  GAS — RIGHT  TO  SHUT  OFF, 
CONTINUED. — Where  the  gas  is  supplied  to  a  person  free 
for  a  number  of  years,  a  gas  company  is  not  justified  in 
shutting  off  the  supply  because  the  person  is  using  the 
gas  in  a  wasteful  manner,  and  the  court  will  enjoin  the 
company  from  shutting  off  the  gas.7  And  where  a  bor- 
ough acquired  the  right  to  use  gas  free  for  all  city  pur- 
poses for  the  privilege  of  laying  its  pipes  on  the  streets 
the  borough  will  not  be  enjoined  from  using  gas  exces- 
sively and  the  remedy  of  the  company  is  an  action  for 
the  value  of  the  gas  excessively  used;8  and  a  gas  com- 
pany is  not  allowed  to  shut  off  the  gas  furnished  on 

1.  Patterson  vs.  Gas  Light  &  Coke  Co.,  2  Ch.,  476;  65  L.  J.  Ch. 

N.  S.,443Riv. 

2.  Lloyd  vs.  Washington  Gas  Light  Co.,  1  Mackey,  331. 

3.  Gas  Light  Co.  vs.  Colliday,  25  Md.,  1. 

4.  Sickles  vs.  Manhattan  Gas  &  L.  Co.,  66  How.  Pr.,  314;  Wood 

vs.  Auburn,  87  Me.,  287;  32  Atl.,  906;  29  L.  R.  A.,  376. 

5.  People  vs.  Manhattan  Gas  &  L.  Co.,  6  Jones  &  S.,  185. 

6.  Girard  Life  Ins.  Co.  vs.  Phila.,  88  Pa.,  393;  Com.  vs.  Phila., 

132  Pa.,  288. 

7.  Graves  vs.  Key  City  Gas  Co.,  83  la.,  714;  50  N.W.,  283. 

8.  Saltsburg  Gas  Co.  vs.  Saltsburg,  138  Pa.,  250;  20  Atl.,  844. 


Price  to  &e  Paid  a  Personal  Debt.  263 

premises  because  the  gas  bill  is  not  paid  at  another 
premises,  but  the  authorities  conflict  on  the  point. l  The 
gas  company,  in  regulating-  the  supply  of  gas  may  adopt 
rules  and  regulations  relating  to  the  supply  of  gas  to 
customers,  but  such  rules  and  regulations  must  be  just 
and  reasonable.  Thus  a  company  may  require  the  de" 
posit  of  money  to  secure  the  payment  before  the  gas  is 
furnished;2  and  whether  a  deposit  of  $5  is  an  unreason- 
able amount  to  be  asked  to  secure  the  payment  of  gas 
for  a  person's  office  is  a  question  of  fact  for  a  jury;3  and 
where  gas  bills  are  to  be  paid  at  a  certain  time,  and  the 
gas  company  imposes  a  penalty  of  five  per  cent  for  fail- 
ure to  pay  in  ten  days,  and  in  case  of  default  of  fifteen 
days  the  supply  to  be  turned  off,  such  a  rule  is  a  reason- 
able one.4  So  where  the  gas  company  reserved  the  right 
to  turn  off  the  gas  if  the  consumer  fails  to  pay  for  gas 
supplied  and  the  consumer  is  in  default  in  the  payment 
of  gas  at  one  set  of  premises,  the  company  will  be  justi- 
fied in  shutting  off  the  gas  supplied  to  the  premises 
where  there  is  no  default,  as  the  obligation  to  pay  for 
the  gas  is  personal  to  the  consumer  and  does  not  attach 
to  the  premises  where  the  gas  is  consumed;5  and  where 
a  natural  gas  company  reserves  the  right  to  shut  off  the 
supply  in  case  the  natural  gas  fails,  which  the  company 
is  furnishing,  and  notifies  the  consumer  if  the  gas  is  to 
be  shut  off,  the  consumer  cannot  enjoin  the  shutting  off 
of  the  gas.6  Where  a  gas  company  is  given  the  exclu- 

1.  Cadieux  vs.   Montreal  Gas  Co.,  28  Canada  S.   C.,  382.    Re- 

versed in  A.  P.  589  (1899). 

2.  Williams  vs.  Mutual  Gas  Co.,  52  Mich.,  499;  18  N.  W.,  236. 

3.  Bennett  vs.  East  Chester  Gas  Light  Co.,  40  App.  Div.  169; 

57  N.Y.,  Supp.  847. 

4.  Tacoma  Hotel  Co.  vs.  Tacoma  Light  &  H.  Co.,  3  Wash.,  316; 

28  Pac.,  517;  14  L.  R.  A.,  669. 

5.  Montreal  Gas  Co.  vs.   Cadieux,  81  L.   R.   Rep.,  274;  Appeal 

Cases  589  (1899) ;  People  vs.  Manhattan  Gas  Co.,  45  Barb., 
136;  State  ex  rel.  Meise  vs.  Sedalia  Gas  Light  Co.,  34  Mo. 
App.,  501;  Mackin  vs.  Portland  Gas  Co.,  38  Or.,  120;  61 
Pac.,  134;  62  Pac.,  20;  49  L.  R.  A.,  596. 

6.  Thompson  Glass  £o.  vs.  Fayette  Fuel  Co.,  137  Pa.,  317;  21 

Atl.,  93. 


264  Rules  of  Gas  Companies. 

sive  right  to  furnish  gas  to  a  city  such  company  cannot 
require  a  consumer  to  make  a  deposit  to  secure  the  pay- 
ment of  gas,  unless  the  same  is  required  of  all  the  con- 
sumers of  the  company. x  A  customer  is  not  bound  to  pay 
for  the  amount  registered  by  the  meter  and  the  company 
will  be  prevented  from  shutting  off  the  gas  where  the 
meter  might  not  have  correctly  registered  the  amount  of 
gas  used.8 

SEC.  15.  REASONABLENESS  OF  THE  RULES  OF  A  GAS 
COMPANY — RIGHT  OF  A  CONSUMER  TO  BE  SUPPLIED. — 
The  rules  of  a  gas  company  which  require  a  prospective 
customer  to  subscribe  to  th  em  must  be  reasonable.  A  rule 
which  will  permit  the  gas  company  to  have  access,  at  all 
times,  to  the  buildings  and  dwellings  of  a  consumer,  and 
a  right  to  examine  the  whole  apparatus  and  a  right  to 
remove  the  meter  and  service  pipes  is  too  general  and 
cannot  be  upheld  and  a  prospective  consumer  need  not 
subscribe  to  such  a  rule  before  he  is  entitled  to  gas. 3  And, 
where  another  rule  of  the  same  company  provided  that 
the  company  may  shut  off  the  gas,  at  any  time  to  protect 
itself  from  fraud,  such  a  rule  is  invalid,  because  a  gas 
company  cannot  assume  to  do  that  which  is  the  province 
of  the  courts  to  decide  and  determine,  and,  if  the  company 
is  defrauded,  it  must  resort  to  the  same  tribunal  as  other 
persons  or  corporations  do  to  protect  themselves  against 
fraud.4  And  where  a  rule  provided  that  after  gas  was 
admitted  into  the  pipe,  the  pipes  should  not  be  discon- 
nected or  opened,  either  for  alterations,  repairs,  or  ex- 
tension, without  a  permit  from  the  company,  which  could 
be  had  free  of  charge,  and  any  person  who  may  violate 
this  regulation  would  be  required  to  pay  triple  the  amount 
of  damages  occasioned  thereby,  the  rule  was  declared 
invalid,  because  a  gas  company  cannot  impose  penalties 

1.  Owensboro  Gas  Light  Co.  vs.  Hildebrand,  19  Ky.  L.  R.,  983; 

42  S.  W.,  351. 

2.  Sickles  vs.  Manhattan  Gas  Light  Co.,  64  How.  Pr.,  33. 

3.  Shepherd  vs.  Milwaukee  Gas  Light  Co.,  6  Wis.,  539;  70  Am. 

Dec.,  479. 

4.  Shepherd  vs.  Milwaukee  Gas  Light  Co.,  6  Wis.,  539. 


Injunction  Against  Gutting  Off  Supply.  265 

and  make  a  submission  of  a  consumer  to  such  penalties, 
a  condition  precedent  to  his  right  to  be  furnished  gas, 
and  a  gas  company  cannot  assume  the  sovereign  right  to 
impose  penalties  on  a  person  because  such  person  may 
alter,  change  or  extend  the  apparatus  which  conveys  gas 
through  his  own  house  and  which  was  placed  in  such 
house  by  the  owner. '  So  where  rent  was  required  to  be 
paid  in  advance  for  a  stated  time,  and  was  required  to  be 
paid,  whether  used  or  not,  a  rule  which  imposes  such  re- 
quirements on  a  consumer  is  unreasonable  and  invalid.* 
So  where  a  water  company  held  a  franchise  to  furnish  the 
public  with  water  and  one  of  its  rules  provided  that  in 
case  of  default  in  the  payment  of  the  rent  in  advance, 
the  water  would  be  turned  off  and  a  charge  of  $1.00  would 
be  made  for  turning  the  water  off  and  on,  and  a  consumer 
did  not  pay  the  rent  when  due  and  the  water  was  turned 
off  and  the  consumer  thereafter  tendered  the  amount  due 
for  rent  less  the  $1.00  for  turning  the  water  off  and  on  and 
requested  the  company  to  turn  the  water  on,  the  com- 
pany refused  to  do  so  without  the  payment  of  the  $1.00, 
but,  on  an  application  for  a  writ  of  mandamus,  the  com- 
pany was  compelled  to  turn  on  the  water  without  pay- 
ment of  the  $1.00,  since  an  enforcement  of  the  rule  would x 
compel  a  citizen  who  had  made  default  in  his  rent,  though 
all  rents  were  thereafter  paid,  to  pay  more  for  the  water 
furnished  than  other  citizens  under  the  same  conditions, 
and  that  the  costs  and  expenses  of  turning  the  water 
on  and  off  were  part  of  the  rent  paid  annually  and  an  ex- 
tra compensation  cannot  be  demanded  where  default  is 
made. 8 

9 

SEC.  16.  INJUNCTION  AGAINST  CUTTING  OFF  THE 
SUPPLY  OF  GAS — RESTORATION  OF  THE  GAS. — A  gas 
company  may  be  injoined  from  shutting  off  the  supply 
of  gas,  hence  a  gas  company  which  made  a  contract  with 
an  electric  light  plant  to  supply  the  plant  with  natural 

1.  Shepherd  vs.  Milwaukee  Gas  Light  Co.,  6  Wis.,  539. 

2.  Eockland  Water  Co.  vs.  Adams,  84  Me.,  472;  24  Atl.,  840. 

3.  American  Water  Works  Co.  vs.  State  exrel  Walker,  46  Neb., 

194;  30  L.  R.  A.,  447;  64  N.  W.,  711. 


266  Waste  of  Gas  by  Consumer. 

gas  as  long  as  the  gas  company  had  a  supply,  will  be 
enjoined  from  cutting  off  the  supply  of  gas  agreed  to  be 
furnished  to  the  plant  under  the  contract  on  a  complaint 
of  the  owner  of  the  plant,  that  the  plant  was  constructed 
with  the  view  that  the  plant  would  be  furnished  with 
natural  gas  to  operate  the  plant,  and  that  the  owner  of 
the  plant  was  engaged  in  supplying  a  number  of  persons 
with  electric  lights  and  that  contracts  have  been  made 
between  such  persons  and  the  owners  of  the  electric  light 
plant  and  that  the  contracts  have  some  time  to  run  in  the 
future,  and  that,  if  natural  gas  was  not  furnished  to  his 
plant,  the  contracts  cannot  be  fulfilled,  and  that  the 
owners  of  the  plant  will  be  liable  in  damages  if  such  con- 
tracts are  not  fulfilled,  and  that  the  owners,  if  fuel  can 
be  obtained  from  other  sources,  will  be  delayed  in  acquir- 
ing it  and  that  it  will  subject  such  owner  to  great  ex- 
pense. l  So  when  a  company  contracts  to  furnish  gas  and 
then  threatens  to  shut  off  the  gas,  and  the  right  of  the 
company  to  shut  the  gas  off  is  questioned  by  the  con- 
sumer, the  gas  company  will  be  enjoined  pending  a  hear- 
ing of  the  case  on  its  merits;*  and  where  the  ground  set 
up  by  the  company  as  a  right  to  shut  off  the  gas  is  that 
the  consumer  who  receives  the  gas  free  for  a  number  of 
years  is  committing  waste,  the  company's  remedy  is  not 
in  shutting  off  the  gas  but  in  limiting  the  use  of  the  gas 
within  the  terms  of  the  contract;3  and  when  the  use  is 
excessive,  an  action  for  the  value  of  the  gas  used  beyond 
that  to  which  the  consumer  was  entitled  will  lie.4  So 
where  the  consumer  no  longer  wishes  to  use  gas  the  con- 
sumer must  notify  the  company  to  disconnect  the  gas; 
and  the  consumer,  or  the  company  from  which  the  con- 
sumer contracts  to  receive  gas  in  the  future,  has  no  right 
to  interfere  with  the  property  of  the  former  company 
which  was  on  the  public  street,  and  cannot  open  boxes  and 
use  the  stop  cocks  of  such  company  to  shut  off  the  gas 

1.  Xenia  Real  Estate  Co.  vs.  Maey,  147  Ind.,  568;  47  N.  E.,  147. 

2.  Corbet  vs.  Oil  City  Supply  Co.,  5  Pa.  Super.  Ct.,  19. 

3.  Graves  vs.  Key  City  Co.,  83  la.,  714;  93  la.,  470. 

4.  Saltburg  Gas  Co.  vs.  Saltburg,  138  Pa.,  250. 


Charges  for  Meters.  267 

when  such  property  was  on  the  street,  and  will  be  enjoined 
from  doing"  so,  unless  the  proper  notice  was  given  to  shut 
off  the  gas.1  But  a  gas  company  has  no  right  to  compel 
a  consumer  to  use  gas  which  the  consumer  agreed  to  use, 
when  the  contract  is  definite  in  its  terms  and  full  com- 
pensation can  be  made  in  an  action  for  damages,*  but 
where  a  gas  company  contracts  to  furnish  gas  and  shuts 
the  gas  off  from  the  plant  of  a  consumer  and  no  reason 
is  given  for  doing  so,  it  will  be  compelled  to  restore  the 
gas  to  the  consumer,8  but  the  want  of  a  supply  of  gas 
contracted  to  be  furnished  will  give  the  company  a  right 
to  shut  off  the  gas  where  such  right  was  reserved.4 

SEC.  17.  METERS  AND  MIXERS— EXTRA  CHARGES 
TO  SMALL  CONSUMERS. — Under  a  charter  which  provided 
that  a  company  will  be  allowed  a  price  not  to  exceed 
$1.35  per  thousand  feet  consumed  by  private  consumers 
with  a  deduction  of  five  per  cent,  if  paid  five  days  after 
due,  a  gas  company  will  not  be  permitted  to  charge  small 
consumers  at  the  rate  of  $1.35  per  one  thousand  feet  and 
in  addition  thereto  rent  for  meters  which  the  company 
furnishes  to  measure  the  gas  consumed,  as  the  company 
was  bound  to  furnish  the  meter  to  measure  the  gas  con- 
sumed the  same  as  it  was  bound  to  furnish  the  plant  to 
manufacture  the  gas;  and  whe're  the  company  threatens 
to  shut  off  the  gas  for  the  non-payment  of  meter  rent,  it 
will  be  enjoined  at  a  suit  of  the  consumer;5  but  where 
there  is  no  restriction  in  the  charter  of  a  company,  or  in 
the  ordinance  which  grants  the  company  the  right  to  use 
the  streets,  the  company  may  charge  more  to  small  con- 
sumers than  to  large  ones,  and  because  the  charges  are 
denominated  meter  rents,  does  not  make  such  charge 

1.  Pennsylvania  Gas  Co.  vs.  Warren  Gas  Co., 3  Pa.  Dist.  Rep.,  67. 

2.  Steinau  vs.  Cincinnati  Gas  Light  &  Coke  Co.,  48  Ohio  St.,  324; 

27  N.  E.,545. 

3.  Whiteman  vs.  Fayette  Fuel  Gas  Co.,  139  Pa.,  492;  20  Atl., 

1062. 

4.  Black  Lick  vs.  Salsbury,  139  Pa.,  448;  21  Atl.,  432. 

5.  Louisville  Gas  Co.  vs.  Dulaney,  100  Ky.,  405;  36  L.  E.  A.,  125; 

38  S.  W.,  703;  Capital  Gas  &  Electric  Light  Co.  vs.  Gaines, 
20  Ky.  L.  R.,  1464;  49  S.  W.,  462. 


268  Control  of  Meters  and  Mixers. 

meter  rents,  but,  in  fact,  the  charges  are  for  gas  up  to  a 
certain  amount.!  So  where  a  government  tax  is  imposed 
on  a  gas  company  for  the  gas  used  in  supplying  custom- 
ers the  tax  may  be  added  to  the  price  of  the  gas  fur- 
nished to  the  customers.* 

SEC.  18.  METERS,  CONTROL  BY  GAS  COMPANY; 
PLACING  GOVERNORS  THEREON  ILLEGAL;  EQUITY  WILL 
DECREE  REMOVAL — GOVERNORS  MAY  BE  PLACED  IN 
PIPES  OWNED  BY  CONSUMERS — GAS  COMPANY  PLACING 
METER  IN  A  BUILDING  NOT  A  BAILMENT  OF  METER — 
REMOVAL  OF  METER  FOR  FaiLURE  TO  PAY  COST  OF  CON- 
NECTION—APPROVAL OF  METER. — Where  a  person  re- 
ceives gas  from  a  natural  gas  company,  the  owner  of  the 
premises,  where  the  meters  and  mixers  are  used  to  meas- 
ure the  gas  consumed,  has  no  right  to  interfere  with  such 
meter  or  mixer  without  notice  to  the  company  from  which 
gas  is  received.  '•  And  where  the  meters  and  mixers  are 
placed  in  the  property  of  the  consumer,  and  are  placed 
there  by  the  company  supplying  gas,  and  the  company 
is  responsible  and  liable  for  all  injuries  which  may  arise 
from  defects  in  the  meters  and  mixers,  and  the  necessary 
connection  with  the  service  pipe  and  consumer's  pipes, 
there  is  no  bailment  of  such  meters,  mixers  and  necessary 
connections,  where  the  law  requires  of  the  company  to 
place  on  the  premises  of  every  consumer  '  'a  correct  ap- 
paratus or  meter  for  regulating  the  consumption  of  gas, 
and  keep  the  same  in  working  order."4  So  where  such 
meters,  mixers  and  connecting  pipes  belong  to  the  gas 
company,  the  consumer  of  gas  has  no  right  to  place  a 
governor  to  regulate  the  pressure  of  gas  on  any  part  of 
the  property  of  the  company;  and  where  such  owner  or 
occupant  of  the  premises,  or  any  other  person  in  his 

1.  State,  Weise  vs.  Sedalia  Gas  Co.,  34  Mo.  App.,  501;  Louisville 

Gas  Co.  vs.  Dulaney,  100  Ky.,  405. 

2.  St.  Louis  Gas  Light  Co.  vs.  St.  Louis,  11  Mo.  App.,  55  S.C.; 

84  Mo.,  202. 

3.  Pennsylvania  Gas  Co.  vs.  Warren  Gas  Co.,  3  Pa.  Dist.  R.,  67. 

4.  Consolidated  Gas  Co.  vs.  Blondell,  89  Md.,  732;  43Atl.,817; 

46  L.  E.  A.,  187. 


Illegal  Use  of  Meters.  269 

behalf,  places  a  governor  on  such  apparatus,  the  act  is 
an  unlawful  trespass,  and  a  court  of  equity  will  enjoin 
any  farther  trespass.1  The  court  will  interfere  more 
readily  where  gas  fixtures  and  apparatus  are  interfered 
with  because  of  their  peculiar  nature  and  liability  to 
injure  persons  and  property  if  the  gas  should  escape^* 
And  where  such  governors  have  been  placed  on  the  ap- 
paratus of  the  company  by  a  third  person,  the  consumer 
is  not  a  necessary  party  to  a  bill  in  equity  requiring  them 
to  be  removed,  though  they  were  placed  there  with  his 
consent.3  The  defense  of  laches  will  not  prevail  against 
the  company  in  such  a  case,  since  gas  is  a  dangerous 
commodity,  and  by  allowing  persons  to  use  the  meter  for 
their  own  purposes,  it  would  be  difficult  to  determine 
who  caused  the  injury,  and  while  the  company  is  alone 
responsible  the  blame  for  an  accident  can  be  easily  fixed. 4 
Where  governors  are  wrongfully  placed  on  the  apparatus 
of  the  company,  the  court  will  compel  and  require  the 
parties  who  placed  them  on  the  meters  to  remove  them, 
and  such  defendants  must  remove  them,  though  they  do 
not  control  the  premises,  as  the  consumer  cannot  object 
against  a  valid  decree  of  the  court  for  their  removal.5 
The  gas  company,  however,  cannot  prevent  the  owner 
of  a  house  from  placing  a  governor  on  any  part  of  the 
pipe  which  belongs  to  such  owner.'  Where  the  meter 
was  the  property  of  the  gas  company,  and  the  company 
was  not  required  to  put  in  service  pipes,  but  did  so,  un- 
der an  agreement  with  the  consumer  that  the  company 
would  put  in  the  service  pipe,  and  the  consumer  would 
pay  for  the  cost  of  putting  in  the  service  pipes;  the  gas 
company  is  justified  in  removing  the  meter  where  the 

1.  Consolidated  Gas  Co.  vs.  Blondell  et.  al.,  89  Md.,  732. 

2.  Consolidated  Gas    Co.  vs.   Blondell,  supra.;  De  Mattos  vs. 

Gibson,  4  De.  G.  &  J.,  276. 

3.  Consolidated  Gas  Co.  vs.  Blondell,  supra. ;  Blaen  Avon  Coal 

Co.  vs.  McCulloh,  59  Md.,  403;  43  Am.  Rep.,  560. 

4.  Consolidated  Gas  Co.  vs.  Blondell,  89  Md.,  732. 

5.  Consolidated  Gas  Co.  vs.  Blondell,  89  Md.,  732. 

6.  Consolidated  Gas  Co.  vs.  Blondell,  89  Md.,  732. 


270  Recovering  Back  Overcharges. 

consumer  fails  to  pay  for  the  service  pipe. 1  An  ordinance 
which  required  a  natural  gas  company  to  furnish  natural 
gas  by  meters  or  through  mixers,  if  the  consumer  re- 
quired the  company  to  furnish  it  in  that  way,  is  unrea- 
sonable, as  the  company  may  be  able  to  use  other  ap- 
pliances not  so  expensive  to  the  company  and  without 
injury  to  the  consumer. 2  Where  a  statute  provided  that 
a  certain  city  official  or  his  deputies  shall  be  required  to 
inspect  all  gas  meters,  and  if  such  meters  are  correct,  to 
approve  the  same  and  seal  and  stamp  them,  and  where 
such  inspector  or  his  deputy  neglects  or  fails  to  do  as 
the  law  required,  they  will  be  compelled  by  mandamus  to 
perform  his  duty. 8  4 

SEC.  19.  OVERCHARGE  FOR  GAS — RECOVERY  BACK. 
— Under  a  charter  which  fixed  a  limit  which  may  be 
charged  to  customers  who  are  furnished  with  gas,  the 
company  cannot  charge  an  additional  sum  to  small  con- 
sumers as  meter  rents;  and  where  such  charges  were  made 
by  the  gas  company  and  paid  by  the  consumer  without 
objection,  the  overcharge  may  be  recovered  back  because 
such  charges  were  not  within  the  power  of  the  gas  com- 
pany to  make. 4  So  where  an  ordinance  limited  the  amount 
to  be  charged  by  the  gas  company  and  the  company  made 
charges  in  excess  of  the  charges  allowed  by  the  ordi- 
nance, an  action  in  assumpsit  will  lie  to  recover  back 
the  excessive  charges  paid  to  the  gas  company  by  one 
who  did  not  know  that  the  ordinance  limited  the  amount 
to  be  charged  by  the  average  price  paid  by  consumers 
in  other  cities  named,  and  such  charges  are  not  consid- 
ered as  voluntarily  paid;8  but  the  right  of  a  person  to 
recover  back  overcharges  which  were  collected  contrary 
to  a  statute  has  been  denied  where,  under  certain  circum- 

1.  Detroit  Gas  Co.  vs.  Moreton  Truck  &  S.  Co.,  Ill  Mich.,  401; 

69 N.  W.,659. 

2.  Toledo  vs.  Northwestern  Natural  Gas  Co.,  5  Ohio  C.  C.,  557. 

3.  Re  McDonald  (N.  Y.),  16  Misc.,  304. 

4.  Capital  City  Gas  &  Electric  Light  Co.vs.  Gaines,  20  Ky.  L.  R., 

1464;  49  S.  W.,  462. 

5.  Pingree  vs.  Mutual  Gas  Co.,  107  Mich.,  156;  65  N.  W.,  6. 


Acceptance  of  Ordinance.  271 

stances,  the  price  of  gas  was  to  be  reduced  and  such  cir- 
cumstances happened  but  the  company  did  not  reduce 
the  price.1 

SEC.  20.  ESTOPPEL  AS  TO  A  PROVISION  IN  AN  ORDI- 
NANCE, OR  WHEN  A  PERSON  SIGNS  A  CONTRACT  TO  TAKE 
GAS  IF  OTHERS  SHOULD  SUBSCRIBE  TO  TAKE  GAS  ALSO. 
— Where  an  ordinance  was  passed  in  compliance  with  a 
statute  and  such  an  ordinance  limited  the  price  of  gas  to 
be  charged  by  a  gas  company  the  company  will  not  be 
permitted  to  charge  a  consumer  more  than  the  limit  fixed 
by  the  ordinance;  and,  where  the  company  fixes  the 
charges  in  excess  of  the  maximum  price,  the  company 
will  be  enjoined  from  collecting  such  excessive  charges. 8 
And  where  the  ordinance  imposed  certain  restrictions 
on  the  company,  and  such  company  so  acted  as  if  the 
ordinance  was  accepted,  in  all  its  terms,  and  filed  a  nom- 
inal acceptance,  and  opened  the  street  under  the  ordi- 
nance, and  reaped  all  the  benefits  conferred  by  the  ordi- 
nance, and  there  was  a  condition  to  the  ordinance  that 
the  same  should  be  accepted  before  any  rights  would 
accrue  under  the  ordinance,  the  company  cannot  repudi- 
ate the  provision  of  the  ordinance.3  Under  an  agreement 
whereby  a  certain  person  was  to  sink  a  gas  well  and  lay 
pipes  to  supply  certain  persons  with  gas  and  all  others 
who  may  wish  to  receive  gas,  and  the  gas  well  was  to 
be  sunk  and  the  pipes  laid  as  soon  as  twenty  or  more 
persons  would  agree  to  take  gas,  the  contract  became 
binding  as  soon  as  twenty  persons  agreed  to  become  con- 
sumers of  gas,  and  no  one  of  the  presons  who  agreed  to 
take  gas  can  withdraw  his  consent  without  the  consent 
of  all  the  subscribers  and  the  person  who  was  to  furnish 
the  gas.4  No  express  agreement  is  necessary  to  hold  a 
third  person  liable  for  the  gas  consumed  where  the  per- 
son's drilling  apparatus  was  supplied  by  gas  through 

1.  Johnston  vs.  Consumers  Gas  Co.,  78  Law  Term  R.,  270  (1898). 

2.  Westfield  Gas  &  Min.  Co.  vs.  Mendenhall,  142  Ind.,  538;  41  N. 

E.,  1033. 

3.  Allegheny  vs.  Peoples  Nat.  Gas,  etc.,  172  Pa.,  632;  33  Atl.,  704. 

4.  Current  vs.  Fulton,  10  Ind.  App.,  617;  38  N.  E.,  419. 


272  Gas  Companies  Public  Corporations. 

pipes  from  the  plant  of  a  person  who  had  gas  for  sale 
and  he  knew  that  fact,  although  the  person  so  using"  the 
gas  had  a  contract  with  the  person  for  whom  the  drilling 
was  being  done  that  the  latter  would  furnish  the  gas 
which  was  necessary  for  the  operation  of  the  drilling 
apparatus,  and'such  person  made  an  agreement  with  the 
person  whose  gas  was  used  that  the  gas  would  be  fur- 
nished to  the  driller.  * 

SEC.  21.  GAS  COMPANIES  QUASI  PUBLIC  CORPORA- 
TION— MUST  SUPPLY  CUSTOMERS — MANDAMUS  TO  COM- 
PEL THE  COMPANY  TO  SUPPLY — PAYMENT  OR  TENDER 
OF  PAYMENT  WILL  RELIEVE  THE  CUSTOMER  FROM  DE- 
FAULT AND  THE  COMPANY  MUST  THEREAFTER  SUPPLY, 
— It  has  been  heretofore  shown  that  gas  companies  are 
quasi  public  corporations;  hence,  where  such  corporations 
are  clothed  with  the  right  of  eminent  domain,  or  receive 
the  consent  from  the  proper  authorities  or  parties  to  lay 
their  pipes  in  the  public  streets  and  highways,  then  the 
corporations  are  placed  on  the  same  basis  as  telegraph, 
telephone,  common  carriers,  and  other  companies  of  like 
nature,  so  where  a  customer  requests  a  gas  company  to 
supply  him  with  gas  the  company  must  do  so  upon  the 
customer  complying  with  reasonable  and  uniform  rules 
adopted  by  the  company,  and,  on  refusal  of  the  company 
to  serve  a  customer  whose  property  abuts  on  the  street 
where  the  company  pipes  are  laid,  then  the  company 
may  be  compelled  by  mandamus  to  supply  gas  to  the 
customer. 2  A  customer  is  entitled  to  be  served  though 

1.  Chamberlain  vs.  Summit  Gas  Co.,  3  Penney  (Pa.),  261. 

2.  Portland  Natural  Gas  &  Oil  Co.  vs.  State,  Keen,  135  Ind.,  54; 

35  N.  E.,  818;  21  L.  R.  A.,  639;  People  vs.  Manhattan  Gas 
Light  Co.,  45  Barb.,  136;  Williams  vs.  Mutual  Gas  Co.,  52 
Mich.,  499;  Bloomfield  &  R.  Nat.  Gas.  Co.  vs.  Richardson, 
63  Barb.,  437;  Coy  vs.  Indianapolis  Gas  Co.,  146  Ind.,  655; 
46  N.  E.,  17;  36  L.  R.  A.,  635;  American  Water  Works  Co. 
vs.  State,  Walker,  46  Neb.,  194;  64  N.  W.,  711;  30  L.  R.  A., 
447;  Hangen  vs.  Albina  Light  &  Water  Co.,  21  Or.,  411; 
28  Pac.,  244;  State,  Webster  vs.  Neb.  Tel.  Co.,  17  Neb., 
126;  22  N.  W.,  237;  Shepard  vs.  Milwaukee  Gas  Light  Co., 
6  Wis.,  539;  70  Am.  Dec.,  479;  Wood  vs.  Auburn,  87  Me., 
287;  32  AtL,  906;  Mackin  vs.  Portland  Gas  Co.,  49  L.  R.  A., 
596. 


Discrimination  in  Rates.  273 

another  company  supplies  him;1  and  though  the  con- 
sumer has  made  default  in  the  payment  of  his  rent  due 
for  the  consumption  of  gas,  after  the  consumer  paid  or 
tendered  the  payment  of  the  legal  charges  due,  the  con- 
sumer is  entitled  to  the  writ  of  mandamus  to  compel  the 
company  to  supply  him  with  gas,2  but  some  courts  have 
held  that  a  gas  company  is  not  required  to  supply  gas 
to  persons  any  more  than  a  dealer  in  any  other  commod- 
ity would  be  required  to  do  so. 3I 

SEC.  22.  DISCRIMINATION  IN  FAVOR  OP  CERTAIN 
CUSTOMERS  is  ILLEGAL — DISCRIMINATIONS  ILLEGAL  AT 
COMMON  LAW. — A  vendor  of  gas  cannot  charge  more  than 
the  price  fixed  by  the  ordinance  giving  the  right  to  sup- 
ply, but  the  price  fixed  in  the  ordinance  is  not  binding  on 
customers  where  it  is  unreasonable,  unjust  and  oppres- 
sive. 

Gas  companies,  telephone  and  telegraph  companies, 
common  carriers  and  other  owners  of  property  which 
devote  it  to  a  use  in  which  the  public  has  an  interest,  in 
effect,  grant  to  the  public  an  interest  in  such  use  and 
must,  to  that  extent,  submit  to  be  controlled  by  the  pub- 
lic. And  all  persons,  or  any  individual,  are  entitled  to  be 
served,  on  equal  terms  and  at  rates  which  are  uniform. 
Any  and  all  discriminations  made  by  parties  whose  prop- 
erty is  devoted  to  a  public  use  are  unjust,  since  the  law 
requires  that  there  must  be  equality  of  rights  to  all  and 
special  privileges  to  none.  So  where  a  company,  which 
was  the  only  plant  in  a  city,  charged  some  customers  a 
higher  price  to  be  supplied  than  to  others  the  charges 
thus  made  were  declared  to  be  illeg'al  and  an  unlawful 
discrimination,  and  were  so,  though  the  charges  did  not 

1.  Portland  Natural  Gas  &  Oil  Co.  vs.  State,  Keen,  135  Ind.,  54. 

2.  People,  McGrath  vs.  Green  Island  Water  Co.,  56  Hun.,  76; 

American  Water  Works  Co.  vs.  State,  Walker,  46  Neb., 
194;  64  N.  VV.,711;  Maekin  vs.  Portland  Gas  Co.,  38  Or., 
120;  61  Pac..  134;  62  Pac.,  20;  49  L.  R.  A.,  596. 

3.  McCune  vs.  Norwich  City  Gas  Co.,  30  Conn.,  521;  Patterson 

vs.  Gas  Light  Co.,  27  N.  J.  L.,  245. 


274     .  Price  Which  May  be  Charged. 

exceed  the  maximum  price  allowed  by  ordinance.  *  So, 
where  a  gas  company  which  was  organized  under  a  law 
providing1  that  it  shall  furnish  gas  for  fuel  and  lighting 
purposes  to  the  public  and  on  equal  terms  to  all,  the 
company  cannot  favor  the  directors  or  the  stockholders 
with  reduced  prices;  and,  where  a  company  makes  a 
contract  with  such  parties,  giving  them  special  terms, 
the  contract  is  void  as  being  against  public  policy.2  So, 
where  a  prospective  customer  applies  for  gas  from  a  gas 
company  and  the  supply  of  gas  is  refused,  the  company 
will  be  compelled  to  furnish  the  gas,  where  no  valid  ex- 
cuse can  be  given  by  the  company,  and  when  it  appears 
that  the  company  was  acting  in  behalf  of  another  com- 
pany and  both  were  acting  together  in  the  interests  of 
each  other,  the  company  to  which  the  application  has 
been  made  must  furnish  the  gas  and  has  no  voice  in  de- 
termining who  shall  be  its  customers.3  And  where  an 
ordinance  provided  that  each  and  all  would  be  furnished 
gas  on  equal  terms,  and  at  uniform  and  reasonable  prices, 
the  ordinance  went  no  further  than  that  which  the  com- 
mon law  required  of  the  companies. 4  Where  an  ordinance 
or  charter  fixed  the  maximum  rates  to  be  charged  by  a 
gas  or  water  company,  the  companies  cannot  charge  any 
more  for  a  supply  than  that  prescribed  in  the  ordinance 
or  charter  when  the  company  accepted  the  ordinance  or 
charter;  but  the  rates  fixed  in  the  ordinance  or  charter 
are  not  binding  on  a  customer,  where  such  rates  are 
unreasonable,  since  one  is  entitled  to  be  supplied  with 
water  or  gas  on  a  tender  of  reasonable  rates  and  to  an 
injunction  to  prevent  the  company  from  cutting  off  the 
supply  on  refusal  of  the  customer  to  pay  the  unreason- 
able rates.6  It  is  also  an  unjust  discrimination  when 

1.  Griffin  vs.  Goldsboro  Water  Co.,  122  N.  C.,  206;  30  S.  E.,  319; 

41  L.  R.  A.,  240. 

2.  Crescent  Steel  Co.  vs.  Equitable  Gas  Co.  (Pa.),  23  Pittsb.,  L. 

J.  U.  S.,316. 

3.  Hagan  vs.  Fayette  Fuel  Gas  Co.,  21  Pa.  Co.  Ct., 503;  29  Pittsb. 

L.  J.  U.  S.,  229. 

4.  Toledo  vs.  Northwestern  Ohio  Nat.  Gas  Co.,  6  Ohio  N.  P.,  531. 

5.  Griffin  vs.  Goldsboro  Water  Co.,  122  N.  C.,  206;  Toledo  vs. 

Northwestern  Ohio  Nat.  Gas  Co.,  9  Ohio  C.  P.  Dec.,  272. 


Gas  Companies  Subject  to  Public  Control.  275 

more  is  charged  for  lighting"  than  for  fuel  purposes,  where 
the  gas  is  the  same  and  the  only  reason  for  such  a  dis- 
crimination in  the  charges  is  the  gas  is  worth  more  for 
illuminating  purposes  to  the  consumer  than  for  fuel.  *  So 
where  a  gas  company  is  given  the  exclusive  right  to 
furnish  gas  to  a  city  and  its  people  the  legislature  has 
the  power  to  revoke  its  charter  where  the  public  is  op- 
pressed because  of  excessive  rates. 3 

SEC.  23.  VENDORS  OF  GAS  TO  THE  PUBLIC  ARE  SUB- 
JECT TO  THE  CONTROL  OF  THE  STATE  LEGISLATURE — 
PRICE  MAY  BE  FIXED  WITHOUT  NOTICE  OF  SUCH  VEND- 
ORS.— There  is  no  question  but  that  persons  or  companies 
engaged  in  supplying  the  public  with  gas  are  carrying 
on  a  business  which  concerns  the  public  and  that  such 
companies  have  devoted  their  property  to  a  public  use, 
so  where  such  a  use  exists  the  business  becomes  subject 
to  legislative  control  in  all  respects  necessary  to  protect 
the  public  against  danger,  injustice  and  oppression.8 
The  power  of  the  legislature  does  not  depend  upon  the 
question  whether  the  person  controlling  these  properties 
have  a  monopoly  in  the  business,  but  the  sole  question 
is  whether  the  property  is  devoted  to  a  public  use.4  So 
where  a  water  company  was  engaged  in  the  business  of 
furnishing  water  to  the  public,  the  legislature  has  a  right 
to  regulate  the  price  for  which  water  shall  be  sold;5  and 
the  legislature  may  fix  the  price  to  be  charged  without 
any  notice  to  the  persons  or  corporations  to  be  affected 
thereby. 6  A  gas  company  cannot  charge  more  for  gas 

1.  Baily  vs.  Fayette  Fuel  Gas  Co.,  193  Pa.,  175;  44  Atl.,  251. 

2.  State  vs.  Milwaukee  Gas  Light  Co  ,  29  Wis.,  386. 

3.  Georgia  Railroad  &  Bank.  Co.  vs.  Smith,  128  U.  S.,  174;  Munn 

vs.  Illinois,  94  U.  S.,  113. 

4.  People  vs.  Budd,  117  N.  Y.,  1;  Budd  vs.  New  York,  143  U.  S., 

517;  Brass  vs.  North  Dakota,  153  U.  S.,  391. 

5.  Spring  Valley  Water  Works  vs.  Shatteler,  110  U.  S.,  347;  Aqua 

Pura  Co.  vs.  Mayor  Las  Vegas,  —  N.  M.,  — ;  60  Pac., 
208;  50  L.  R.  A.,  294. 

6.  Munn  vs.  Illinois,  94  U.  S.,  113;  Budd  vs.  New  York,  143  U.  S., 

517. 


276  Right  of  Public  to  Fix  Price  of  Gas. 

than  is  allowed  by  the  city  ordinance  although  the  com- 
pany had  a  contract  with  the  consumer  allowing-  a  higher 
price,  and  such  contract  was  made  before  the  ordinance 
was  passed.1 

SEC.  24.  RIGHT  TO  Fix  PRICE  MAY  BE  DELEGATED 
TO  MUNICIPAL  AUTHORITIES — ORDINANCE  PASSED  IN 
PURSUANCE  OF  SUCH  AUTHORITY  REGARDED  AS  A  STATE 
LAW— NOTICE  MUST  BE  GIVEN  TO  THE  VENDOR  OF  GAS 
BEFORE  THE  PRICE  OF  GAS  CAN  BE  FIXED — RIGHT  OF 
CITIES  WHEN  CONSUMERS  TO  Fix  THE  PRICE. — The  leg- 
islature having  the  right  to  fix  the  price  to  be  paid  to 
the  vendors  of  gas  by  the  public,  the  legislature  may 
authorize  the  city  council  of  the  various  cities  to  fix  the 
price  of  gas  and  the  delegation  of  such  authority  is  not 
unlawful.2  And  when  a  statute  confers  a  power  upon 
the  municipal  authorities  to  fix  the  charges  to  be  paid 
for  gas  by  consumers,  the  ordinance  or  regulation  fixing 
the  price  to  be  paid  for  gas  is  a  state  law;8  but,  where 
the  legislature  does  not  fix  the  price  to  be  paid,  but  dele- 
gates the  authority  to  a  commission,  or  to  the  municipal 
authorities,  the  parties,  the  price  of  whose  commodity  is 
to  be  fixed,  must  have  notice  of  the  time  and  place  of 
the  hearing  to  determine  the  price  to  be  charged;  in 
short,  there  must  be  a  judicial  investigation  of  the  rea- 
sonableness of  the  rate  to  be  fixed;  and  a  notice  or  sum- 
mons must  be  served  on  the  party  to  be  affected  thereby 
and  an  opportunity  to  be  heard  on  the  question;  and, 
where  rates  are  fixed  without  a  judicial  determination, 
such  rates  are  void  as  depriving  a  person  of  his  property 
without  the  process  of  law;4  and  where  the  city  con- 
ferred upon  the  council  the  right  to  fix  the  price  to  be 
charged  for  gas,  where  the  city  itself  was  a  consumer,  to 

1.  City  of  Chillicothe  vs.  Logan,  etc.,  Gas  Co.,  8  Ohio  N.  P.,  88. 

2.  Capital  City  Gas  Light  Co.  vs.  Des  Homes,  72  Fed.  R.,  829. 

3.  Cleveland  Gas  Light  &  Coke  Co.  vs.  Cleveland,  71  Fed.  Rep., 

610;  Capital  City  Gas  Light  Co.  vs.  Des  Moines,  72  Fed.  R., 
829. 

4.  Chicago,  Milwaukee  &  St.  P.  Ry.  Co.  vs.  Minnesota,  134  U.  S., 

418;  Aqua  Pura  Co.  vs.  Mayor  of  Las  Vegas,  —  N.  M., 
— ;  60  Pac.,  208;  50  L.  R.  A.,  224. 


Reasonable  Hates.  277 

the  extent  of  five  or  six  thousand  dollars  per  month,  and 
the  other  consumers  were  the  inhabitants  of  the  city,  the 
court  held  that  the  proposition  was  outrageous  and 
monstrous  if  the  state  conferred  such  a  right  on  the  cit}7, 
as  no  law  could  be  regarded  as  fair  which  gives  a  pur- 
chaser a  right  to  say  what  price  he  shall  pay  for  a  conv 
modity,  and  such  a  law  is  unconstitutional. * 

The  same  rule  was  laid  down  when  the  legislature 
delegated  the  right  to  fix  the  price  to  be  paid  for  water 
by  a  city  and  its  inhabitants,  and  the  law  was  declared 
void,  as  an  interested  party  had  no  right  to  fix  the  price, 
but  the  court  held  that,  if  the  law  provided  for  a  judicial 
investigation,  the  law  might  be  legal.2  A  city  may  fix 
the  price  of  gas  or  water,  although  it  is  a  consumer,  is 
now  firmly  established.3 

SEC.  25.  RATES  MUST  BE  REASONABLE;  UNREA, 
SONABLE  LOW  RATE  DEPRIVES  A  PERSON  OP  HlS  PROP- 
ERTY WITHOUT  DUE  PROCESS  OF  LAW,  AND  THE  STATE 
OR  A  MUNICIPALITY  HAS  NO  SUCH  POWER— SUCH  QUES- 
TIONS ARE  FEDERAL. — Since  authority  may  be  given  by 
the  state  to  cities  to  fix  the  price  of  gas,  so  an  ordi- 
nance passed  or  regulation  made  is  regarded  as  a  state 
law,  hence,  when  an  ordinance  fixes  the  price  so  low  that 
it  has  the  effect  of  depriving  a  person  of  his  property 
without  due  process  of  law,  and  the  vendor  of  gas  to 
the  public  is  thus  deprived  of  the  right  to  charge  for 
gas  what  it  is  reasonably  worth  by  a  state  law,  the  ordi- 
nance is  invalid,  as  no  state  can  pass  a  law  so  as  to- 
deprive  a  person  of  his  property  without  due  process  of 
law,  and  to  deprive  a  person  of  the  use  of  his  property 
is  to  deprive  him  of  the  property  itself.4  So  where  the 
price  is  fixed  so  low  by  an  ordinance  that  running  ex- 

1.  Cleveland  Gas  Light  &  Coke  Co.  vs.  Cleveland,  71  Fed.  Rep., 

610;  See  Capital  City  Gas  Light  Co.  vs.  Des  Moines,  72  Fed. 
R.,829. 

2.  Aqua  Pura  Co.  vs.  Mayor  Las  Vegas,  60  Pac.,  208;  —  N.  M., 

— ;  50  L.  R.  A.,  224. 

3.  Sect.  28,  infra. 

4.  Capital  City  Gas  &  Light  Co.  vs.  Des  Moines,  72  Fed.  R.,  829; 

New  Memphis  Gas  &  Light  Co.  vs.  Memphis  (C.  C.  W.  D. 
Tenn.),72Fed.  R.,952. 


278  State  May  Regulate  Price. 

penses  cannot  be  paid  and  a  reasonable  profit  made  on 
the  money  invested  in  the  enterprise,  the  property  is 
thereby  rendered  worthless  and  such  an  ordinance  is 
unreasonable  and  void.1  The  legislature  itself,  though 
it  has  the  power  to  fix  the  rates  to  be  charged  by  gas 
companies,  has  no  power  to  fix  the  rates  so  low  as  to 
deprive  the  company  of  all  profits  from  its  business;  and, 
where  a  gas  company  has  a  charter  from  the  state,  which 
may  be  altered  and  amended  by  the  legislature,  the  legis- 
lature has  no  power  to  prevent  the  company  from  charg- 
ing reasonable  rates  for  the  gas  furnished  to  consum 
«rs;  and  a  law  passed  which  has  the  effect  of  rendering 
the  property  a  burden  on  the  owners,  because  the  rates 
are  unreasonable,  the  law  is  void,  as  depriving  a  person 
of  property  without  due  process  of  law.2  The  United 
States  court,  in  holding  that  the  legislature  had  the  right 
to  fix  reasonable  rates  without  a  judicial  investigation, 
did  so  with  a  reservation,  that  the  power  to  adjust,  regu- 
late and  limit  the  price  to  be  charged  is  not  without  a 
limit,  and  is  not  a  power  to  destroy,  or  the  power  to 
compel  the  doing  of  services  without  reward,  or  to  take 
private  property  for  private  use  without  just  compensa- 
tion or  without  due  process  of  law.8  So  when  a  question 
as  to  the  reasonableness  of  the  rates,  or  whether  they 
have  the  effect  of  depriving  a  person  of  his  property 
without  just  compensation,  is  a  Federal  question  and  one 
which  calls  for  judicial  investigation,  though  the  legis- 
lature fixed  the  rates  to  be  charged.4 

SEC.  26.  STATE  MAY  REGULATE  THE  PRICE  TO  BE 
CHARGED  WHEN  IT  RESERVES  THE  RIGHT  TO  AMEND  THE 
CHARTER  OR  THE  LAW  UNDER  WHICH  A  GAS  COMPANY 
WAS  ORGANIZED  AND  MAY  DELEGATE  THE  RIGHT  TO  A 

1.  Indianapolis  Gas  Co.  vs.  Indianapolis,  82  Fed.  R.,  245. 

2.  New  Memphis  Gas  &  Light  Co.  vs.  Memphis  (C.   C.  W.  D. 

Te.nn.),72Fed.  R.,  952. 

3.  Dow  vs.  Biedleman,  125  U.  S.,  680;  Munn  vs.  Illinois,  94  U. 

S.,  113. 

4.  New  Memphis  Gas  Light  &  Coke  Co.  vs.  Memphis,  72  Fed.  R., 

952. 


May  Delegate  Right  to  the  City  Council.  279 

CITY  COUNCIL;  AND  MAY  Fix  THE  PRICE  THOUGH  THE 
LAW  WAS  SILENT  ON  THE  POINT  WHEN  THE  COMPANY  WAS 
INCORPORATED  AND  THE  CITY  COUNCIL  MAY  Fix  THE 
PRICE  WHEN  RESERVED  IN  THE  LAW  OR  CHARTER. — 
Where  the  legislature  reserved  the  right  to  amend  the 
laws  by  which  a  gas  company  was  allowed  to  charge" 
reasonable  rates,  the  legislature,  in  giving  a  city  the 
power  to  fix  the  rates,  does  not  deprive  the  gas  company 
of  any  right,  if  the  rate  fixed  by  the  city  is  reasonable. 1 
And  where  the  ordinance  by  which  a  gas  company  was 
allowed  to  place  its  pipes  in  the  streets  of  a  city  pro- 
vided that  the  city  council  had  and  reserved  the  right  to 
make  the  rates  after  a  period  of  ten  years;  and  there 
was  an  acceptance  of  the  ordinance  by  a  gas  company, 
the  passage  of  the  ordinance  and  its  acceptance  amount 
to  a  contract  between  the  city  and  the  gas  company;  and 
the  city,  through  its  council,  has  a  right  to  fix  the  price 
and  the  gas  company  cannot  complain  unless  the  city 
was  guilty  of  what  amounts  to  a  fraud  in  fixing  the  price 
of  gas  at  too  low  a  rate. "  And,  where  a  gas  company  re- 
ceives its  charter,  when  no  law  is  in  force  giving  the  gas 
company  a  right  to  fix  the  price  of  gas,  and  the  charter 
of  the  company  gives  no  right  to  fix  the  price,  a  city  has 
the  power  to  fix  the  price  when  the  city  is  thereafter 
authorized  by  law  to  fix  the  price  to  be  paid,  and  may 
compel  the  company  by  mandamus  to  furnish  the  gas  at 
the  price  so  fixed. 3  So  where  the  ordinance  by  which  a 
gas  company  was  permitted  to  engage  in  the  business  of 
furnishing  gas  provided  that  the  price  of  gas  may  there- 
after be  regulated  upon  such  terms  as  the  gas  company 
and  the  city  may  agree  upon,  and  the  gas  company 
refuses  to  act,  a  court  will  compel  the  company  to  do  as 
the  ordinance  provides  in  respect  to  the  regulation  of 
the  price.4 

1.  Capital  City  Gas  Light  Co.  vs  Des  Moines,  72  Fed.  Rep.,  829. 

2.  Logansport  &  W.  Va.  Gas  Co.  vs.  Peru  (C.  C.  D.  Ind.),89 

Fed.  R.,  185. 

3.  Zanesville  Gas  Light  Co.  vs.  Zanesville,  47  Ohio  St.,  1;  23  N. 

E.,  55;  Same  vs.  Same,  47  Ohio,  35. 

4.  City  of  Toledo  vs.  Northwestern  Ohio  Nat.  Gas.  Co.,  6  Ohio 

N.  P.,  531. 


280  Receiver  Bound  by  the  Rates. 

So  where  a  city  ordinance  was  enacted  giving  a  gas 
company  the  right  to  lay  its  pipes  on  the  streets  of  a  city 
for  a  period  of  twenty  years,  and  also  providing  that  the 
company  would  be  allowed  to  charge  a  certain  price  for 
gas  which  was  passed  through  gas  meters,  the  ordinance 
was  passed  by  the  council  in  its  legislative  capacity  and 
was  not  a  contract  between  the  city  and  the  gas  company, 
and  the  ordinance  was  a  valid  regulation  of  the  price  to 
be  charged  for  gas  where  cities  and  towns  were  given  the 
power  to  regulate  the  price  to  be  charged  by  the  vendors 
of  gas  and  also  the  price  to  be  charged  for  meter  rents, 
although  the  legislature  may  subsequently  deprive  the 
city  of  the  power  to  regulate  the  price  to  be  charged  by 
the  gas  company,  but  the  ordinance  was  binding  as  long 
as  the  city  gave  the  company  the  right  to  maintain  its 
pipes  on  the  streets,  and  the  regulation  was  valid  although 
another  section  of  the  statute  provided  that  the  city 
council  had  'a  right  to  fix  by  contract  the  minimum  price 
of  gas  for  a  period  not  to  exceed  ten  years,  where  the 
gas  was  to  be  furnished  to  the  people  of  the  city,  since 
the  city  passed  the  ordinance  under  its  legislative  pow- 
ers and  not  under  its  power  to  contract,  and  the  ordinance 
was  binding  on  the  receiver  of  the  gas  company.1  So 
where  an  ordinance  is  enacted  in  pursuance  of  a  law  au- 
thorizing it,  by  which  the  minimum  price,  as  well  as  the 
maximum  price,  was  fixed,  and  the  gas  company  accepted 
the  ordinance,  and  the  gas  company  need  not  furnish  gas 
below  the  minimum  price  fixed  by  ordinance  for  a  certain 
period  and  the  period  during  which  the  gas  company  was 
not  obliged  to  furnish  gas  below  the  minimum  price  had 
expired,  a  receiver  for  the  gas  company  cannot  raise  the 
price  of  gas  beyond  the  maximum  price  fixed  by  the 
ordinance,  where  the  city  had  the  right  to  regulate  the 
price  of  gas  from  time  to  time,  and  the  city  does  not  see 
fit  to  raise  the  price  though  the  maximum  price  fixed, 
is  in  sufficient  as  then  operated.  *  So  where  the  charter  of 

1.  Manhattan  Trust  Co.  vs.  Dayton,  59  Fed.  Rep.,  327;  16  U.  S. 

App.,588. 

2.  Manhattan  Trust  Co.  vs.  Dayton  Natural  Gas  Co.,  (C.  C.  S. 

D.  0.),  55  Fed.  R.,  181. 


Binding  Effect  of  Contract.  281 

gas  company  was  silent  as  to  the  right  of  the  company  to 
fix  the  price  of  gas,  the  legislature  may  thereafter  fix 
the  price;1  and  if  such  regulation  can  be  made  and  no 
contract  obligation  between  the  company  and  the  state 
was  involved,  the  regulation  is  valid.2 

SEC.  27.  COURTS  WHICH  DENY  THE  RIGHT  TO  Fix 
RATES  WHEN  NOT  RESERVED  IN  THE  LAW  GRANTING  THE 
FRANCHISE— THE  CONTRARY  DOCTRINE  IN  OTHER  COURTS 
— RIGHT  TO  Fix  RATES  A  CONTINUING  ONE — RELIEF  IN 
COURT  FROM  UNREASONABLE  RATES. — It  has  been  held 
that  a  state  has  no  right  to  regulate  the  price  of  gas, 
when  the  state  granted  a  charter  to  the  company  without 
any  reservation  of  the  right  to  regulate  the  price,  and 
the  charter  provided  that  the  company  may  charge  reas- 
onable rates.3  So  where  a  city  and  a  gas  company  agreed 
as  to  what  price  should  be  charged  for  gas,  and  it  was 
within  the  power  of  the  parties  to  make  the  contract,  a 
statute  thereafter  enacted  cannot  affect  the  prices  agreed 
upon  in  the  contract  until  the  expiration  of  the  con- 
tract.4 And  the  right  to  make  a  contract  agreeing  upon 
the  price  to  be  paid  for  gas  does  not  come  within  the 
police  power  of  the  state,  and  an  irrevocable  contract  as 
to  such  prices  can  be  made,  though  if  it  came  within  the 
police  power  it  could  not  be  made.5  And  where  the 
charter  specifies  a  maximum  and  a  minimum  price  which 
may  be  charged  by  the  company,  it  is  within  the  power 
of  the  city  to  fix  the  price  intermediate  between  the  max- 
imun  and  minimum,  and  the  legislature  has  no  power  to 
change  the  price  as  agreed  upon  by  the  company  and 
the  city.6  And  where  there  is  no  statute  prohibiting  a 

1.  State  Atty.  Gen.  vs.  Columbus  Gas  Light  Co.,  34  Ohio  St., 

572. 

2.  Toledo  vs.  Northwestern  Ohio  Nat.  Gas  Co.,  5  Ohio  C.  C.,557. 

3.  Cleveland  Gas  Light  Co.  vs.  Cleveland  (C.  C.  W.  D.  0.),  71 

Fed.  Rep.,  610. 

4.  Toledo  vs.  Northwestern  Ohio  Nat.  Gas  Co.,  5  Ohio  C.  C.,  557. 

5.  State,  St.  Louis  vs.  Laclede  Gas  Light  Co.,  102  Mo.,  472;  14 

S.  W.,  974. 

6.  State,  St.  Louis  vs.  Laclede  Gas  Co.,  102  Mo.,  472;  14  S.  W., 

974. 


282  When  the  Court  May  Fix  Hates. 

city  and  a  gas  company  from  entering-  into  an  agreement 
as  to  the  price  of  gas  and  the  ordinance  provided  that 
the  price  shall  be  fixed  as  the  parties  may  mutually  agree 
from  time  to  time,  the  agreement  is  binding  on  the  par- 
ties until  the  legislature  deprives  the  city  of  the  power 
to  make  such  an  agreement.1  So  where  the  ordinance 
by  which  a  company  acquired  right  to  lay  its  pipes  on 
the  street  limited  the  price  the  company  can  charge  per- 
sons up  to  the  limit,  but  the  company  cannot  go  above 
the  maximum  price  allowed.  *  A  gas  company  which  re- 
ceives its  charter  from  the  state  and  the  state  reserved 
no  right  to  limit  the  charges  which  the  gas  company  can 
make,  cannot  charge  excessive  prices,  since  the  consumer 
has  the  right  to  invoke  the  courts  for  protection  against 
unreasonable  charges,  but  where  there  is  a  legally  con- 
stituted body  to  fix  rates  provided  by  statute  the  court 
will  not  fix  the  rates  until  such  body  has  acted  upon  the 
matter.3  It  may  also  be  stated  in  this  connection  that 
some  courts  hold  that  the  state  cannot  delegate  the  city 
council  of  a  city  the  right  to  fix  the  rates  to  be  charged 
for  ga§  for  the  reason  the  city  is  a  consumer  of  gas,  as 
well  as  the  members  of  the  city  council,  and  are  therefore 
interested  parties;  but  other  courts  have  held  that  this 
contention  is  not  of  any  force,  because  if  the  contention 
was  valid  it  is  destructive  of  the  doctrine,  in  its  entirety, 
that  the  state  is  possessed  of  power  to  restrict  within 
reasonable  limits  the  charges  of  quasi  public  corpora- 
tions, for  the  state  acts  through  the  members  of  the  gen- 
eral assembly,  who  are  the  agents  and  representatives 
of  those  who  are  to  be  benefited  by  such  restrictions. 
The  suggestions  omit  from  consideration  the  controlling 
fact,  that  quasi  public  corporations  are  created  by  the 
state  for  the  good  of  the  public,  to  serve  the  public — and 
they  accept  corporate  rights  subject  to  the  power  re- 
tained by  their  creator  to  regulate  and  control  them  for 

1.  Toledo  vs.  Northwestern  Ohio  Nat.  Gas  Co.,  5  Ohio  C.  C.,  557. 

2.  Westfield  Gas  &  Min.  Co.  vs.  Mendenhall,  142  Ind.,  583;  41  N. 

E.,  1033. 

3.  Griffin  vs.  Goldsboro  Water  Co.,  122  N.C.,  206;  30  S.E.,  319. 


Delegation  of  the  Power  to  Fix  Rates.  283 

public  good. l  The  right  of  the  legislature  to  delegate  to 
the  city  council  the  power  to  fix  rates  has  been  affirmed 
by  the  Supreme  Court  of  the  United  States  on  a  writ  of 
error  from  the  state  Supreme  Court  of  Illinois;  and,  in  a 
case  where  the  point  was  made,  that  the  city  council 
could  not  fix  the  rates  because  the  councilmen  could  not^ 
fix  the  rate  since  they  were  interested  as  consumers,  but 
the  court  upheld  the  right  of  the  city  council  to  fix  the 
rates. a  It  may  also  be  stated  in  this  connection  that 
some  courts  hold  that  because  the  state  charter  does  not 
reserve  the  right  to  fix  the  rates  the  state  is  deprived  of 
the  power  thereafter  to  fix  the  rates  to  be  charged.  The 
ruling  has  not  been  upheld  in  later  cases,  since  a  com- 
pany using  the  streets  of  a  city  and  accepting  a  franchise 
from  the  state  is  bound  to  furnish  to  the  public  gas,  at 
reasonable  rates,  because  such  corporations  are  called 
into  being  by  the  state  to  serve  the  public,  and  the  state 
has  the  power  to  compel  such  corporations  to  do  their 
duty.  And  where  a  charter  provided  that  a  company 
may  charge  reasonable  rates  the  state  has  a  right  to  say 
what  are  reasonable  rates;  and,  where  an  ordinance 
which  gave  a  company  a  franchise  for  thirty  years  and 
fixed  a  schedule  of  rates  for  that  period,  the  ordinance 
is  not  a  contract  between  the  company  and  the  city,  but 
a  simple  declaration  that  the  rates  were  reasonable  for 
the  time  being;  and  the  right  of  the  state,  or  the  city, 
when  empowered  by  the  state  to  fix  the  rates,  is  a  con- 
tinuing one  for  the  right  is  a  function  of  government  and 
cannot  be  granted  away  under  doubtful  provision  in  char- 
ters, statutes,  or  ordinances. 3 

SEC.  28.  CITIES  AND  TOWNS  HAVE  No  RIGHT  TO 
REGULATE  THE  PRICE  OF  GAS  UNLESS  AUTHORIZED  BY 
THE  LEGISLATURE,  THOUGH  A  GAS  COMPANY  AND  A  CITY 
MAY  MUTUALLY  AGREE  ON  A  PRICE  TO  BE  PAID  IF  THERE 

1.  Osborne  vs.  San  Diego  Land  &  Town  Co.,  178  U.  S.,  22. 

2.  Rogers  Park  Water  Co.  vs.  Fergus,  178  111.,  571;  53  N.  E.,  363; 

S.  C.  Rogers  Park  Water  Co.  vs.  Fergus,  180  U.  S.,  624. 

3.  Rogers  Park  Water  Works,  Fergus  178  111.,  571;  affirmed  180 

U.  S.,  624. 


284         Legislative  Authority  Must  be  Given  to  Cities. 

is  NO  LAW  AUTHORIZING  THE  CITY  TO  Fix  THE  PRICE, 
BUT  THE  CONTRACT  is  NOT  BINDING  AFTER  THE  LEGIS- 
LATURE GIVES  THE  CITY  A  POWER  TO  Fix  THE  PRICE. — 
Independent  of  statutes,  cities  and  towns  have  no  power 
to  regulate  the  price  for  which  gas  shall  be  furnished  to 
the  city  or  town  or  its  inhabitants.  *  So  where  a  statute 
gave  the  trustees  of  towns  and  common  councils  of  cities, 
the  power  to  regulate,  by  ordinance,  the  safe  supply,  dis- 
tribution and  consumption  of  natural  gas,  and  the  per- 
sons, corporations,  or  companies  which  supply  the  gas 
are  to  pay  a  reasonable  license  for  the  use  of  the  streets, 
the  statute  gave  no  power  to  a  city  or  town  to  regulate 
the  price  of  gas.2  So,  also,  under  a  statute  empowering 
cities  to  light  streets  and  a  power  to  contract  with  any 
person  to  erect  gas  works  to  light  the  streets,  or,  under 
a  statute,  providing  that  any  gas  company  may  manu- 
facture and  sell  to  any  town  or  village  its  gas,  as  may 
be  required  by  such  town  or  village,  or  by  private  per- 
sons, and  such  corporations,  or  persons,  shall  have  power 
to  lay  its  pipes  on  the  streets,  upon  the  town  or  city  giv- 
ing consent,  the  statute  does  not  authorize  a  city  or  town 
to  fix  the  price  for  gas  and  without  the  statute  giving 
such  power,  such  towns  or  cities  have  no  right  to  regu- 
late the  price;3  but  it  was  once  held,  by  a  divided  court, 
that  a  city  had  the  power  without  express  statutory  au- 
thority, to  fix  the  price  of  gas,  but  the  case  has  since 
been  overruled.4  So  where  a  city  council  was  authorized 
to  adopt  rules  governing  the  price  of  gas  and  gave  the 
board  of  gas  trustees  the  right  to  fix  the  price,  such  trus- 
tees have  no  power  to  establish  the  price  to  be  paid  for 
gas  without  the  council  first  adopting  rules  by  which  the 
price  may  be  fixed.5  So  where  a  city  which  adopts  a 
charter  under  the  constitution  and  laws  of  the  state  for 

1.  Lewisville  Natural  Gas  Co.  vs.  State,  Reynols,  135  Ind.,  49; 

34  N.  E.,  702;  21  L.  R.  A.,  734. 

2.  Lewisville  Nat.  Gas  Co.  vs.  State,  Reynols,  135  Ind.,  49. 

3.  Be  Pryor,  55  Kan.,  724;  41  Pac.,  958;  29  L.  R.  A.,  398. 

4.  Rushville  vs.  Rushville  Nat.  Gas  Co.,  132  Ind.,  675;  28  N.  E., 

853. 

5.  Foster  vs.  Findlay,  5  Ohio  C.  C.,  455. 


What  Considered  in  Fixing  Eates.  285 

the  purpose  of  their  own  government,  and  the  laws  of 
the  state  provided  that  the  charter  must  be  consistent 
with  the  constitution,  and  laws  of  the  state,  such  a  city 
cannot  insert  in  the  charter  a  power  authorizing-  it  to  fix 
the  prices  of  gas. *  So  where  the  legislature  had  passed 
no  law  regulating  the  price  of  gas  or  water,  and  had  not 
passed  any  law  authorizing  the  cities  and  towns  to  regu- 
late the  price  of  gas  or  water,  but  gave  cities  and  towns 
a  right  to  provide  for  the  same,  a  city  or  town  cannot 
make  a  binding  contract  for  the  price  to  be  paid  for  the 
future  supply;  and  where  such  a  contract  was  attempted 
to  be  made  and  the  legislature  thereafter  authorizes  the 
cities  and  towns  to  regulate  the  prices  to  be  paid,  such 
cities  and  towns  may  reduce  the  price,  notwithstanding 
the  city  had  made  a  contract  to  pay  a  higher  price  and 
such  contract  had  not  yet  expired,  because  the  cities  and 
towns  had  no  power  to  make  such  contract,  unless  ex- 
press authority  was  first  given  them  by  the  legislature, 
hence  the  contract  was  not  binding  where  the  authority 
was  not  given.8  And  it  has  been  held  that  where  the 
city  council  undertakes  to  regulate  gas  companies  and 
there  was  no  law  enacted  by  the  legislature  authorizing 
the  city  to  do  so,  the  ordinance  cannot  be  regarded  as  a 
state  law,  consequently  the  ordinance  will  not  come 
within  the  provision  of  the  constitution  of  the  United 
States  that  no  state  shall  pass  a  law  impairing  the  obli 
gation  of  contracts.3 

SEC.  29.  IN  FIXING  RATES,  THE  COST  OF  THE  PLANT, 
THE  BONDS  ISSUED  AND  A  FAIR  DIVIDEND  AND  THE  EX- 
PENSES IN  OPERATING  THE  PLANT  MUST  BE  CONSIDERED 
—INTEREST  ON  BONDS  BONA  FIDE  ISSUED,  OR  STOCK 
REPRESENTING  THE  ACTUAL  COST  ONLY  ARE  ALLOWED, 


1.  Tacoma  Gas  &  Electric  Light  Co.  vs.  Tacoma,  14  Wash.,  288; 

44  Pac.,655. 

2.  Freeport  Water  Company  vs.  Freeport,  186  111.,  179;  affirmed 

in  180  U.  S.,  587;  Rogers  Park  Water  Co.  vs.  Fergus,  178 
111.,  571;  affirmed  in  180  U.  S.,  624;  Danville  Water  Co.  vs' 
Danville,  186  111.,  179. 

3.  Hamilton  Gas  Light  Co.  vs.  Hamilton,  146  U.  S.,  258. 


286  Elements  of  Cost. 

THE  PRICE  PAID  FOR  PROPERTY  NOT  USED  CANNOT  BE 
CONSIDERED,  NOR  RENT  PAID  FOR  SUCH  PROPERTY,  AND 
WHEN  THE  EARNINGS  ALREADY  PAID  THE  COST  OF  THE 
PLANT,  THAT  MUST  BE  CONSIDERED. — The  courts  in  as- 
certaining whether  a  law  or  ordinance  fixes  the  price  of 
gas  at  a  reasonable  rate,  must  take  into  consideration, 
whether  the  price  to  be  charged  will  permit  the  company 
to  pay  the  expenses,  which  the  company  legally  incurred 
in  operating  the  gas  system,  and  the  interest  on  bonds, 
if  any,  provided  the  bonds  were  issued  in  good  faith,  in 
raising  money  which  went  into  the  system,  and  will  con- 
sider that  owners  of  the  plant  are  entitled  to  reasonable 
returns  for  the  money  invested  in  the  gas  plant.1  So 
where  the  charter  of  a  company  runs  for  a  period  of 
twenty  years,  and,  in  granting  the  company  the  right  to 
use  the  streets,  the  city  council  reserved  the  right  to  de- 
termine the  price  to  be  paid  for  gas  the  last  ten  years,  if 
the  net  earnings  for  the  first  ten  years  paid  the  cost  of 
the  plant,  the  council,  in  arriving  at  the  rate,  should 
take  that  fact  into  consideration  and  fix  the  rates  ac- 
cordingly. 2  So,  in  considering  the  value  of  the  property, 
or  the  cost  of  the  plant,  rent  paid  for  land,  which  the 
company  controls,  cannot  be  considered  as  an  expense, 
where  the  company  does  not  use  nor  occupy  the  land,  in 
connectiod  with  the  plant,  and  where  the  company  is- 
sues bonds  on  the  system  to  pay  for  patents,  which  the 
company  does  not  need  in  its  business,  or  for  patents 
which  have  expired,  the  bonds  issued  for  such  purposes 
cannot  be  considered  as  part  of  the  cost  of  the  plant.8 
The  fair  and  reasonable  cost  of  the  plant  will  only  be  con- 
sidered, so  where  money  was  spent  lavishly,  and  waste- 
fully,  the  cost  will  be  reduced  to  what  the  plant  ought  to 
reasonably  cost,  and,  since  the  bonds  or  stock  may  be 

1.  New  Memphis  Gas  &  Light  Co.,  72  Fed.  R.,  952. 

2.  Logansport  &  W.  Va.  Gas  Co.  vs.  Peru  (C.  C.  D.  Ind.),  89 

Fed.  R.,  185. 

3.  Capital  City  Gas  Light  Co.  vs.  Des  Moines,  72  Fed.  R.,  829; 

Griffin  vs.  Goldsboro  Water  Co.,  122  N.  C.,  206;  30  S.E., 
319. 


When  Value  of  Gas  May  be  Recovered.  287 

watered,  the  public  need  not  pay  interest  on  such  ex- 
penditures. 1 

SEC.  30.  VALUE  OF  GAS  FURNISHED  CAN  BE  RECOV- 
ERED FROM  A  ClTY  ON  AN  IMPLIED  CONTRACT — No  LIM- 
ITATION LAW  RUNS  WHERE  THE  TAX  WAS  COLLECTED 
SPECIALLY  TO  PAY  FOR  GAS — THE  VALUE  OF  GAS  C^VN 
BE  RECOVERED  FROM  THE  OWNER  OF  A  BUILDING  WHEN 
DELIVERED,  THOUGH  THE  GAS  WAS  CONSUMED  BY  A 
THIRD  PERSON. — A  gas  company  which  furnishes  gas  to 
a  city  can  recover  the  price  from  the  city,  even  if  there 
is  no  express  contract  between  the  city  and  the  com- 
pany, though  the  charter  of  the  city  provides  that  all 
contracts  between  the  city  and  third  persons  must  be  in 
writing,  as  the  recovery  may  be  had  on  an  implied  con- 
tract.* And  where  a  gas  company  was  bound  to  furnish 
gas  to  all  persons  who  apply  for  it,  a  city  cannot  defeat 
the  payment  of  the  price  of  gas  furnished  to  the  city  be- 
cause the  mayor  of  the  city  was  interested  as  a  stock- 
holder and  officer  in  the  gas  company,  since  the  price  or 
value  of  the  gas  furnished  can  be  recovered  on  an  implied 
contract.3  So  where  gas  is  furnished  on  an  implied  con- 
tract and  the  period  of  the  Statute  of  Limitations  has  run, 
the  statute  is  no  defense  to  a  suit  for  the  recovery  of  the 
price,  where  the  charter  provides,  that  all  moneys  levied 
for  a  special  purpose  shall  be  set  apart  for  that  purpose 
and  the  taxes  have  been  levied  and  collected  to  pay  for 
the  gas,  since  the  holder  of  the  money  is  an  express  trus- 
tee of  the  money  collected  to  pay  the  charges  for  light- 
ing.4 So  a  gas  company  may  recover  the  market  value 
of  gas  used  by  a  consumer  for  lighting  purposes,  though 
such  consumer  has  a  contract  with  the  gas  company  to 
use  gas  for  fuel  and  the  price  charged  for  fuel  is  lower 
than  the  price  charged,  or  market  value  of  gas  as  an 

1.  Missouri  Pac.  Ry.  vs.  Smith,  60  Ark.,  241;  Chicago  &  G.  T. 

Ry.  vs.  Wellman,  143  U.  S.,  339;  Covington  &  L.  Turnpk. 
Road  vs.  Sanford,  164  U.  S.,  578. 

2.  Memphis  Gas  Light  Co.  vs.  Memphis,  93  Term.,  612;  30S.W.,25. 

3.  Capital  City  Gas  Co.  vs.  Young,  109  Cal.,  140;  29  L.  R.  A.,  463. 

4.  Memphis  Gas  Light  Co.  vs.  Memphis,  93  Term.,  612;  30S.W.,2o. 


288  Discrimination  in  Price. 

illuminant;1  and  a  gas  company  can  recover  the  price  of 
gas  from  the  owner  of  the  premises  where  the  company 
delivered  the  gas  through  its  meter  to  the  premises,  al- 
though a  third  person  received  the  benefit  of  the  gas, 
when  no  negligence  can  be  charged  to  the  company.  *  And 
a  gas  company  can  recover  the  reasonable  value  of  gas 
or  a  reasonable  price  for  the  cost  of  production  and  de- 
livery, although  there  is  a  contract  between  the  gas  com- 
pany and  the  consumer,  that  gas  will  be  furnished  at  the 
price  provided  in  the  contract  so  long  as  the  company 
can  produce  gas  at  a  reasonable  cost,  where  the  supply 
of  gas  has  decreased  to  such  an  extent  that  the  cost  of 
production  has  also  increased  and  the  gas  company  would 
not  only  make  no  profits,  but  would  also  become  insol- 
vent by  furnishing  gas  at  the  price  provided  in  the  con- 
tract.8 

SEC.  31.  MORE  CANNOT  BE  CHARGED  FOR  GAS  WHEN 
USED  FOR  ILLUMINATING  THAN  FOR  FUEL  PURPOSES. — 
A  company  was  chartered  for  the  purpose  of  producing, 
transporting  and  supplying  natural  gas  for  heat,  light 
and  other  purposes  and  was  engaged  in  supplying  gas, 
both  for  heat  and  light,  and  undertook  to  regulate  the 
price  of  gas  to  a  consumer  according  to  the  use  to  which 
the  gas  was  put  by  the  consumer.  The  court  held  that, 
as  far  as  this  particular  case  was  concerned,  the  gas 
company  was  regarded  as  incorporated  for  the  purpose 
of  supplying  heat  and  light,  and  its  corporate  powers 
were  measured  by  its  corporate  duties,  and  one  of  these 
duties  was  that  a  corporation  shall  perform  its  duties 
without  individual  discrimination  to  any  who  may  desire 
its  services.  A  regulation  which  undertakes  to  discrim- 
inate in  price,  according  to  the  use  to  which  gas  was  put 
by  the  consumer,  and  measure  the  price  by  what  the  con- 
sumer would  have  to  pay  for  a  substitute,  for  one  pur- 
pose or  the  other,  if  gas  could  not  be  had,  is  an  invalid 

1.  Philadelphia  Co.  vs.  Park,  138  Pa.,  346;  22  All.,  86. 

2.  Chauteauvs.  St.  Louis  Gas  Light  Co.,  47  Mo.,  App.  326. 

3.  Cresent  Steel  Co.vs.  Equitable  Gas  Co.,  23  Pitts.,  L.J.N.S.,  316. 


Construction  of  an  Ordinance  as  to  Price.  289 

regulation.1     The   following-  notice  was   given  to  con- 
sumers of  gas,  to- wit: 

"Beginning  October  1st,  1897,  the  price  for  natural 
gas,  when  used  for  fuel  and  light,  will  be  20  cents  per 
1,000  cubic  feet.     When  used  for  fuel  only  the  rate  will 
be  the  same  as  heretofore,  12|  cents  per  1,000  cubic  feeJt._ 
RICHMOND  NATURAL  GAS  COMPANY." 

A  consumer  who  had  used  gas  both  for  fuel  and 
lighting  purposes  tendered  the  gas  company  the  value  of 
the  gas  at  the  rate  of  12-J-  cents  per  1,000  cubic  feet,  and 
the  gas  company  refused  to  accept  the  amount  tendered, 
but  demanded  pay  at  the  rate  of  20  cents  per  1,000  cubic 
feet,  and  the  consumer  also  offered  to  put  in  separate 
meters  and  pay  at  the  rate  of  20  cents  per  1,000  cubic  feet 
for  light  and  12^  for  fuel,  but  the  company  refused  to  per- 
mit him  to  put  in  the  meters  and  threatened  him  that  if 
the  meters  were  put  in  or  the  gas  bill  was  not  paid  the 
gas  would  be  turned  off,  and  the  consumer  brought  an 
action  to  enjoin  the  company  from  shutting  off  the  gas. 

The  gas  company  was  held  to  be  engaged  in  a  busi- 
ness which  was  public  in  its  nature,  and  was  a  creature 
of  the  law,  and  it  was  granted  certain  privileges,  not 
only  for  its  own  private  benefit,  but  also  for  the  benefit 
and  good  of  the  public.  The  regulation  was  held  to  be 
unreasonable,  arbitrary  and  unjust  and  was  therefore 
void.8 

SEC.  32.  CONSTRUCTION  OF  AN  ORDINANCE  AS  TO 
PRICE  OF  GAS  FOR  FUEL  AND  ILLUMINATING  PURPOSES. — 
An  ordinance  giving  to  a  party  and  his  assigns  the  right 
to  lay  pipe  and  furnish  gas  had  the  following  section 
regulating  the  price  to  be  charged:  "Said  Hanks  &  Mc- 
Clary  or  their  assigns  shall  not  charge  and  collect  more 
than  one  dollar  and  twenty-five  cents  ($1.25)  per  thou- 
sand feet  for  gas  for  illuminating  purposes,  not  more 
than  ninety  (90)  cents  per  thousand  cubic  feet  for  gas  for 

1.  Bailey  vs.  Fayette  Fuel  Gas  Co.,  193  Pa.,  175;  44  AtL,  175. 

2.  Richmond  Natural  Gas  Co.  vs.  Clawson,  155  Ind.,  659;  58  N. 

E.,1049;  51  L.  R.  A.,  744. 


290  Estopped  from  Advancing  Price. 

heating"  purposes,  with  a  rebate  of  twenty  (20)  per  cent, 
on  said  above  prices  in  case  of  payment  on  or  before  the 
twelfth  (12th)  of  the  month  next  succeeding1  that  in 
which  the  gas  is  used  by  the  consumers  thereof.  When 
said  Hank  &  McClary  or  their  assigns  shall  furnish 
illuminating  gas,  then  said  Hank  &  McClary  or  their 
assigns  shall  supply  gas  light  under  uniform  and  suffi- 
cient pressure,  *  *  *  and  the  quality  of  the  same 
shall  be  as  nearly  uniform  as  practicable,  averaging  for 
any  one  month  not  less  than  sixteen  (16)  sperm  candles, 
burning  one  hundred  and  twenty  grams  per  hour,  to  be 
determined  by  authorized  phalometrical  tests,  a  five  (5) 
foot  burner  being1  used."  The  party  to  whom  the  right 
was  given,  and  his  assigns,  for  a  time  furnished  gas 
only  for  fuel  and  heating  purposes,  and  then  engaged  in 
the  manufacture  of  gas  both  for  light  and  fuel,  and 
charged  $1.00  per  thousand  cubic  feet  for  the  former  and 
72  cents  for  the  latter,  and  the  gas  was  manufactured  to 
be  used  for  light,  but  permitted  it  to  be  used  for  both 
purposes.  The  company  was  thereafter  merged  into  an- 
other company  under  permission  from  the  legislature, 
and  the  consolidated  company  raised  the  price  of  gas 
for  all  purposes  to  $1  00  per  1,000  cubic  feet  because  the 
gas  thus  furnished  was  illuminating  gas  and  was  of  a 
higher  grade  than  fuel  gas,  and  failed  to  furnish  fuel 
gas  to  certain  consumers  other  than  the  illuminating 
gas,  but  promised  to  furnish  such  gas  in  the  future.  The 
court  in  giving  construction  to  this  ordinance  held  that 
the  clear  intent  of  the  ordinance  was  that  the  company 
was  not  required  to  furnish  a  high  grade  illuminating 
gas  for  fuel  purposes.  The  fact  that  the  original  com- 
pany did  so  did  not  estop  the  consolidated  company 
from  charging  the  price  stipulated  to  be  charged  for 
illuminating  gas.  Nor  was  the  consolidated  company 
prohibited  from  charging  such  price,  although  the  old 
company  charged  only  the  rates  provided  in  the  ordin- 
ance, and  the  law  allowing  the  companies  to  be  consoli- 
dated provided:  "Such  corporation  shall  not  increase 
the  price  charged  by  it  for  gas  of  the  quality  furnished 


Statute  Permitting  Consolidation.  291 

to  consumers  during  any  part  of  the  year  immediately 
preceding  such  purchase  or  lease  or  such  consolidation 
and  merger."  This  applied  only  to  the  company  into 
which  another  company  had  been  merged. 1 

1.  Peoples  Gas  Light  Co.  vs.  Hale,  94  111.  App.,  406. 


DAMAGES   CAUSED   BY  GAS. 


CHAPTER  XVII. 

SECTION  1.  CARE  REQUIRED  OP  GAS  COMPANIES.— 
Illuminating"  gas  is  an  agent  which  is  dangerous  to  life 
and  property,  so,  while  it  remains  on  the  premises  of  the 
manufacturer,  or  while  it  is  conveyed  through  the  streets 
in  cities-  and  towns,  the  owner  of  the  gas  is  bound  to  ex- 
ercise vigilance,  so  that  persons  and  property  shall  not 
be  injured  thereby.1  A  gas  company  is  bound  for  the 
consequences  of  its  neglect,  though  these  consequences 
were  not  and  could  not  by  ordinary  prudence  have  been 
anticipated.2  .To  avoid  injuring  persons  and  property 
every  caution  suggested  by  experience  and  the  known 
dangers  of  gas  ought  to  be  taken.3  Vendors  and  dealers 
in  gas  are  required  to  exercise  the  highest  degree  of  care 
to  see  that  no  part  of  their  system  for  the  manufacture 
and  transportation  .of  gas  is  out  of  repair,  so  that  the 
public,  or  any  member  thereof,  or  property  may  not  be 
placed  in  danger.  Parties  engaged  in  the  business  of 
selling  gas  to  the  public  are  engaged  in  a  quasi  public 
business,  and  they  acquire  the  right  to  lay  their  pipes 
from  the  state  and  cities,  therefore  it  is  their  duty  to  use 
the  highest  degree  of  care,  and  "care  and  diligence  should 
always  vary  according  to  the  exigencies  which  require 
vigilance  and  attention,  conforming  in  amount  and  de- 
gree to  ihe  particular  circumstance  under  which  they  are 
to  be  exercised.  But  it  must  be  equal  to  the  occasion  on 
which  it  is  to  be  used,  and  is  always  to  be  judged  of 

1.  Schermer  vs.  Gas  Light  Co.,  147  N.  Y.,  529;  42  N.  E.,  202;  30 

L.  R.  A.,  653;  Tiehr  vs.  Consolidated  Gas  Co.,  65  N.  Y. 
Supp.,  10;  51  App.  Div.,  446. 

2.  Oil  City  Gas  Co.  vs.  Robinson,  99  Pa.,  1. 

3.  Koelsch  vs.  Philadelphia  Co.,  152  Pa.,  355;  25   Atl.,  522;  18  L, 

R.  A.,  759. 


Due  Care  Required  of  Both  Parties.  293 

according1  to  the  subject  matter  and  the  force  and  danger 
of  the  material  under  the  defendant's  charge  and  the  cir- 
cumstances of  the  case."1  So  where  a  statute  granted 
natural  gas  companies  the  right  to  lay  pipes  in  the 
streets  and  highways  and  a  certain  section  of  the  statute 
provided:  "Said  company  shall  be  liable  for  damages^ 
that  may  result  from  the  transportation  of  the  same,"  a 
duty  was  imposed  upon  the  company  by  the  statute  of 
absolutely  controlling  the  gas,  and  the  company  was 
liable,  although  it  was  guilty  of  no  negligence  in  permit- 
ting the  gas  to  escape.8  So  where  a  gas  company  sup- 
plied gas  to  certain  tenants  in  a  building,  made  up  of 
flats,  and  other  tenants  have  not  applied  for  it,  the  gas 
company  owes  a  duty  to  the  tenants  who  have  not  ap- 
plied for  it  to  see  that  the  gas  fixtures,  which  are  capable 
of  being  inspected,  are  in  a  proper  condition  to  retain 
the  gas.3 

SEC.  2.  DUE  CARE  ON  PLAINTIFF'S  PART — PRE- 
SUMPTION OF  NEGLIGENCE  AGAINST  THE  DEFENDANT. — 
An  action  for  damages  sustained  by  a  child  of  tender 
years  was  brought  against  a  gas  company  for  injuries 
received  from  inhaling  gas  which  found  its  way  to  the 
room  where  the  child  and  his  mother  were  asleep.  The 
evidence  showed  that  there  was  no  gas  fixtures  in  the 
house,  and  no  gas  was  found  escaping  about  the  place 
the  day  before,  and  it  did  not  appear  from  the  evidence 
that  anything  unusual  happened.  No  direct  testimony 
could  be  had,  because  the  mother  had  lost  her  life  and  the 
child  was  too  young  to  testify.  The  mother  and  child 
received  their  injuries  after  they  had  gone  to  sleep. 
These  facts  were  sufficient  to  show  due  care  on  the  part 
of  the  plaintiff. 

The  evidence  showed  that  the  pipes  of  the  gas  com- 
pany permitted  gas  to  escape  near  the  house  occupied  by 

1.  Holly  vs.  Boston  Gas  Light  Co.,  8  Gray,  129. 

2.  Ohio  Gas  Fuel  Co.  vs.  Andrews,  50  Ohio,  695;  35  N.  E.,  1059; 

29  L.  R.  A. ,337. 

3.  Schermer  vs.  Gas  Light  Co.,  147  N.  Y.,  529;  42  N.  E.,  202;  30 

L.  R.  A.,  653. 


294  Defective  Service  Pipes. 

the  plaintiff  and  it  found  its  way  into  the  house  occupied 
by  the  plaintiff.  This  was  held  to  be  evidence  of  negli- 
gence, because  the  pipes  were  made  to  contain  the  gas 
and  conduct  it  safely,  and  it  was  the  gas  company's  duty 
to  see  that  they  were  suitable  and  sufficient  and  laid  in 
the  ground  in  a  proper  manner  and  kept  in  repair.  So 
an  instruction  is  correct  which  tells  the  jury:  That  there 
was  evidence  enough  of  want  of  proper  care  on  the  part 
of  the  defendant  to  make  it  responsible  on  the  ground 
that  it  was  bound  to  conduct  its  gas  in  a  proper  manner; 
and  the  fact  that  the  gas  escaped  was  prima  facie  evi- 
dence of  some  neglect  on  the  part  of  the  defendant. l 

A  city  was  the  owner  of  a  gas  plant  and  gas  was 
found  escaping  from  one  of  its  mains  in  one  of  the  streets 
and  the  city  had  notice  of  the  escaping  gas  for  two 
weeks.  The  persons  who  occupied  the  premises  were 
tenants,  and  the  landlord  from  whom  the  tenants  rented 
was  told  not  to  light  matches  in  a  certain  place,  but  that 
fact  was  not  communicated  to  the  persons  who  occupied 
the  premises.  One  of  the  persons  who  occupied  the 
premises  entered  the  place  where  gas  was  said  to  escape 
and  was  asphyxiated.  The  facts  were  held  to  present  a 
case  of  inexcusable  and  protracted  neglect  of  duty  on 
the  part  of  the  city  which  resulted  in  the  death  of  a 
human  being.  The  duty  of  promptly  locating  and  stop- 
ping the  leak  was  one  that  solely  devolved  upon  the  city. 
That  was  their  duty  and  that  alone  was  a  proposition  so 
plain  that  it  required  no  citation  of  authorities  or  argu- 
ment to  support  it,  and,  although  the  evidence  might 
tend  to  show  contributory  negligence,  a  verdict  of  a  jury 
would  not  be  disturbed. 2 

SEC.  3.  DEFECTIVE  SERVICE  PIPE  AND  OTHER  AP- 
PLIANCES WHICH  THE  GAS  COMPANY  ASSUMES  TO  CON- 
TROL.— A  person  rented  a  house  which  had  been  formerly 
supplied  with  natural  gas,  but  just  previous  to  that  time 
the  house  was  vacant  and  the  gas  was  shut  off.  The 
tenant  made  application  for  gas  and  the  gas  company 

1.  Smith  vs.  Boston  Gas  Light  Co.,  129  Mass.,  318. 

2.  Otterback  vs.  City  of  Philadelphia,  161  Pa.,  Ill;  28  Atl.,  991. 


Defective  Meters.  295 

sent  its  servant  who  had  shut  off  the  gas  to  make  the 
connection.  The  next  day  a  fire  was  started  in  a  wood 
stove  and  an  explosion  took  place  and  wrecked  part  of 
the  house  and  injured  the  tenant's  wife.  The  gas  escaped 
from  a  defective  pipe  of  the  gas  company.  The  gas  com- 
pany* was  held  bound  to  exercise  due  care  when  it  insi&ts 
and  assumes  the  duty  of  making  the  connections  of  the 
house  main  with  its  pipes  in  the  street.  The  fact  that 
the  servant  applied  his  nose  to  the  floor,  which  had 
openings,  to  determine  whether  gas  was  escaping  or  not, 
was  not  sufficient  to  show  due  care,  where  there  were 
other  well  known  tests  which  were  not  used.  The  ques- 
tion of  due  care  is  for  the  jury  to  determine,  nor  is  the 
gas  company  relieved  from  liability  where  the  applica- 
tion for  gas  contained  the  provision:  "Neither  is  it  to  be 
held  liable  for  damages  to  persons  or  property  resulting 
from  explosions,  or  fire,  or  for  any  other  damages  what- 
soever resulting  or  occurring  from  the  use  of  gas,"  where 
the  injury  was  not  from  the  use  of  gas  but  from  the  de- 
fective closing  of  the  gas  pipes.1  So  when  a  gas  com- 
pany owns  and  controls  the  meter  put  in  a  house  the 
gas  company  is  liable  for  damages  where  the  gas  escapes 
from  the  meter  and  is  set  on  fire,  which  destroys  the 
property  of  the  occupant  of  the  house.  In  such  a  case 
the  gas  company  was  held  bound  to  maintain  its  meter 
in  a  condition  free  from  the  menace  of  danger  to  the 
person  and  property  of  others  by  the  exercise  of  a  rea- 
sonable degree  of  care,  which  is  measured  with  the 
dangerous  and  explosive  nature  of  gas.  The  company 
was  bound  to  ascertain  the  defect  and  make  all  needful 
repairs.  Where  the  company  was  notified  four  weeks 
before  the  fire  that  gas  escaped  and  its  servants  failed 
to  find  the  leak,  and  leaks  could  be  found  by  ordinary 
tests,  the  negligence  of  the  defendant  is  manifest,  and 
this  is  true  although  the  servants  who  made  the  exam- 
ination swear  that  they  did  their  duty  in  making  the 
test,  for  the  leak  was  there  and  they  failed  to  find  it,  so 
they  were  negligent  in  the  performance  of  the  duty  im- 

1.  Bastian  vs.  Keystone  Gas  Co.,  50  N.  Y.  Supp.,  537. 


296          Work  Voluntarily  Done  by  Gas  Companies. 

posed  upon  the  company.1  So  where  a  person  was  sup- 
plied with  gas  by  a  certain  gas  company  and  he  wished 
to  have  a  drop  light  placed  over  his  desk,  and  the  gas 
company  volunteered  to  do  the  work  free  of  charge  and 
sent  a  person  to  do  the  work,  and  the  servant  performed 
the  work  and  then  left  the  place  and  about  an  hour 
later  the  servant  returned  and  was  told  that  gas  leaked 
and  the  servant  applied  a  match  to  ascertain  the  leak 
and  an  explosion  followed,  the  gas  company  was  liable. 
The  acts  of  the  servant  were  held  to  be  the  acts  of  the 
master,  and  with  respect  to  the  defense  that  the  com- 
pany was  a  gratuitous  bailee  and  would  be  liable  only 
for  gross  negligence,  the  court  said:  "Whatever  tech- 
nical relations  existed  between  the  parties  respecting 
the  particular  job,  the  defendant  was  bound  to  exercise 
the  care  which  the  nature  of  the  work  required.  Gas  is 
explosive  and  leaks  in  pipes  are  apt  to  cause  ignition  of 
escaping  gas  and  produce  serious  fires,  and  a  higher  de- 
gree of  care  and  vigilance  is  required  in  dealing  with  a 
dangerous  agency  than  in  the  ordinary  affairs  of  life  which 
involve  little  or  no  risk  to  life  or  property."  The  gas 
company  was  responsible  for  the  acts  of  the  servant, 
and  as  he  knew  that  "sand  holes"  might  exist  in  pipes 
and  he  applied  a  match  when  his  attention  was  called 
to  the  smell  of  gas,  and  this  caused  the  resulting  injury. 
Such  conduct  on  the  part  of  one  knowing  the  con- 
sequences was  negligent  and  made  the  gas  company 
liable.2 

So  where  a  leak  took  place  in  a  house  and  the  gas 
company  sent  a  servant  to  repair  the  leak,  and  the  serv- 
ant examined  the  fixtures  and  said  the  leak  was  in  the 
chandelier  and  said  he  would  make  the  needed  repairs, 
but  on  the  following  night  the  room  where  the  leak  was 
was  occupied  and  the  gas  leaked  from  the  defective 
chandelier  and  injured  an  occupant  of  the  room,  and 
thereafter  the  chandelier  was  taken  down  and  examined 

1.  Anderson  vs.  Standard  Gas  Light  Co.,  40  N.  Y.  Supp.,  671. 

2.  German  Insurance  Co.  vs.  Standard  Gas  Light  Co.,  70  N.  Y. 

Supp.,  384. 


Pipes  Under  Consumers  Control.  297 

and  was  found  to  be  defective,  the  gas  company  was 
liable  because  when  it  undertook  to  find  the  leak  and 
stop  it,  the  gas  company  was  bound  to  do  the  work  with 
reasonable  care.  The  facts  showed  that  the  work  was 
not  done  with  reasonable  care,  but  negligently,  and  the 
injuries  resulted  from  the  want  of  due  care  on  the  part, 
of  the  gas  company.  * 

SEC.  4.  ESCAPE  OF  GAS  THROUGH  PIPES  NOT  CON- 
TROLLED BY  A  GAS  COMPANY — TRESPASS. — A  gas  com- 
pany is  not  responsible  for  injury  where  the  pipes  are 
within  the  building  and  not  in  the  control  of  the  com- 
pany, and  the  gas  was  turned  on  by  direction  of  the 
owner  and  the  injuries  which  followed  from  the  escape 
of  gas  were  done  in  the  part  of  the  building  in  which 
the  gas  was  turned  on.  The  fact  that  the  company  per- 
mitted the  person  who  put  in  the  fixtures  to  turn  on  the 
gas  will  not  make  the  gas  company  liable  when  such 
person  was  an  employe  of  the  consumer  and  the  gas  es- 
caped because  the  end  of  a  gas  pipe  which  entered  the 
room  where  the  gas  exploded  was  not  closed.8  A  gas 
company  is  not  liable  where  the  gas  is  turned  on  by  a 
former  employe  of  the  company  at  the  request  of  the 
owner  when  the  owner  knew  that  such  person  did  not 
perform  the  duties  which  he  formerly  did  and  that  an- 
other person  was  doing  such  work  for  the  company.  The 
fact  that  the  person  who  turned  on  the  gas  did  the  same 
at  other  places  and  he  reported  to  the  company,  and  the 
company  acquiesced  in  the  acts  of  such  person  at  other 
places,  will  not  make  such  person  an  agent  of  the  com- 
pany and  liable  for  his  acts  where  the  company  did  not 
direct  him  to  turn  on  the  gas  at  the  place.8  So  where  a 
gas  company  had  the  valves  which  controlled  the  high 
and  low  pressure  mains  securely  enclosed  in  a  box  and 
an  agent  of  another  gas  company  wishing  to  take  water 
out  of  the  pipes  of  the  company  for  which  he  opened  the 

1.  Ferguson  vs.  Boston  Gas  Light  Co.,  170  Mass.,  182;  49  N.  E., 

115. 

2.  Flint  vs.  Gloucester  Gas  &  Light  Co.,  3  Allen,  343. 

3.  Flint  vs.  Gloucester  Gas  &  Light  Co.,  9  Allen,  552. 


298       Duties  Toward  Tenants  in  Apartment  Houses. 

gas  box  by  mistake  and  turned  on  the  gas  from  a  high 
pressure  main  to  a  low  pressure  main  which  supplied  a 
house  with  gas,  and  the  gas  fixtures  in  the  house  were 
not  sufficient  to  control  the  gas  and  an  explosion  fol- 
lowed which  wrecked  the  house  and  killed  the  wife  of 
the  occupant  and  injured  him,  the  gas  company  which 
owned  the  gas  was  not  liable  for  the  damages  sustained 
because  the  act  of  the  agent  of  the  other  company  was 
an  unlawful  interference  with  its  appliances  and  the  gas 
company  was  in  no  way  responsible  for  his  acts.  *  The 
gas  company  whose  agent  unlawfully  interfered  with 
the  gas  box  and  turned  the  gas  in  the  high  pressure 
main  into  the  low  pressure  main  is  liable  for  the  acts  of 
its  agents,  although  at  the  time  the  valves  were  changed 
there  was  but  little  gas  in  the  mains,  because  it  had  been 
shut  off  at  the  time  to  make  needed  repairs  and  the  explo- 
sion followed  some  time  after  the  gas  was  turned  on  by 
the  company.  The  negligence  of  the  company  which 
owned  the  pipes  and  valves  is  no  defense  where  the 
negligence  of  both  companies  was  concurrent.  The  fact 
that  the  meter  and  regulator  were  out  of  order  is  no  de- 
fense, nor  is  evidence  of  these  facts  competent  where 
the  evidence  does  not  show  that  they  contributed  to  the 
injury. 2 

SEC.  5.  DUTIES  TOWARD  TENANTS  OCCUPYING 
APARTMENT  HOUSES. — A  woman  occupied  certain  rooms 
in  an  apartment  house  as  tenant  and  a  gas  company 
supplied  her  with  gas  upon  her  own  request.  The  gas 
did  not  flow  well  through  the  pipes  and  the  landlord  re- 
quested the  gas  company  to  remedy  the  defect  and  the 
gas  company  sent  its  employes  to  do  so.  The  gas  did 
not  flow  through  the  pipes  because  water  had  accumu- 
lated in  them,  and  it  was  necessary  to  shut  off  the  gas 
from  the  mains  and  disconnect  the  service  pipe  and  blow 
the  water  out.  The  woman  had  no  notice  that  the  gas 

1.  McKenna  vs.  Bridge  Water  Gas  Co.,  193  Pa.,  633;  45  Atl.,  52; 

47  L.  R.  A.,  790. 

2.  McKenna  vs.  Citizens  Natural  Gas  Co.,  198  Pa.,  31;  47  Atl., 

990. 


Shutting  Off  Gas  Without  Notice  to  Occupants.       299 

was  to  be  shut  off,  so  she  turned  on  the  gas  in  a  radiator 
and  lit  it  and  then  laid  down  and  went  to  sleep,  and 
while  so  asleep  the  servants  of  the  gas  company  discon- 
nected the  pipe  and  the  radiator  ceased  to  burn.  When 
the  water  had  been  removed  from  the  pipes  the  servants 
of  the  gas  company  connected  them  again  and  turned  on 
the  gas,  which  flowed  freely  through  the  open  radiator 
in  the  room  where  the  woman  was  asleep.  After  the  gas 
was  thus  turned  on,  she  remained  asleep  for  some  time, 
when  she  awoke,  greatly  injured  from  inhaling  the  gas. 
The  care  required  of  the  gas  company  in  such  a  case  was 
commensurate  with  the  dangers  which  might  confront 
an  occupant  of  a  room  if  for  any  reason  the  gas  might 
flow  into  a  room  without  being  lighted,  which  everyone 
knows  might  be  the  means  of  causing  an  explosion  or 
might  suffocate  a  person  who  might  be  in  the  room. 
Whether  the  gas  company  used  sufficient  care  by  going 
to  the  door  of  the  room  and*  tried  to  arouse  her  was  suf- 
ficient to  exonerate  it  from  liability  was  a  question  for 
the  jury  to  determine.1 

So  where  a  building  was  made  up  of  separate  and  in- 
dependent apartments  and  the  apartments  were  reached 
by  a  common  hallway  from  the  street,  and  the  building 
was  just  constructed  and  had  gas  fixtures  throughout 
the  building  and  the  gas  company  owned  and  controlled 
the  service  pipe  from  the  street  main  to  a  place  within 
the  basement,  and  a  custom  had  grown  up  in  the  city 
that  no  gas  would  be  furnished  by  the  gas  company 
until  proper  plans  of  the  piping  had  been  furnished,  and 
the  company  would  rely  on  the  plans  as  furnished  with- 
out making  an  inspection  of  the  pipes  and  fittings — the 
plans  furnished  in  this  case  showed  the  building  has  sev- 
eral apartments— and  would  then  furnish  a  meter,  and 
the  person  desiring  the  gas  would  make  the  connection 
and  turn  on  the  gas,  which  was  controlled  by  a  stop 
cock  in  the  service  pipe,  near  the  curb,  on  the  street, 
and  the  gas  was  so  turned  on  for  many  years  without 

1.  Byer  vs.   Consolidated  Gas  Co.,  44  App.  Div.,  158;  60  N.  Y., 
Supp.,  628. 


300  Injury  to  Volunteers. 

any  objection  by  the  company,  and  after  the  gas  was 
turned  on  it  flowed  freely  through  an  open  end  of  a  pipe 
in  the  hallway  and  entered  the  apartments  of  women 
tenants  who  had  not  applied  for  gas  and  who  were  not 
customers  of  the  gas  company,  and  a  boy  who  occupied 
a  lower  apartment  went  to  the  assistance  of  the  women 
and  in  searching  for  the  leak  with  a  candle  the  gas  ex- 
ploded and  the  boy  lost  his  life,  the  facts  justified  the 
submission  of  negligence  on  the  part  of  the  gas  company 
as  well  as  the  negligence  of  the  boy  in  searching  for  the 
leak  with  a  light,  to  a  jury.  The  reasons  given  by  the 
court  were: 

First — The  women  tenants  were  not  customers  of  the 
gas  company  and  the  presence  of  gas  in  the  hall  was 
obnoxious  to  them  and  the  deceased  boy  was  acting  in 
their  behalf  and  for  their  benefit,  although  the  means  he 
used  was  his  own. 

Second — The  gas  company  manufactured  and  fur- 
nished an  agent  for  illuminating  purposes  which  might 
become  a  most  dangerous  one,  liable  to  explode,  and  to 
injure  human  beings  and  property,  and  whether  the  gas 
company  used  reasonable  precautions  as  might  properly 
be  exacted  of  it  before  turning  on  the  gas  or  permitting 
it  to  be  turned  on  by  some  third  person,  was  a  question 
to  be  determined  by  a  jury. 

Third — The  fact  that  the  gas  was  turned  on  by  some 
third  person  not  connected  with  the  company  was  no  de- 
fense when  the  injury  was  to  a  person  in  an  apartment 
which  had  not  applied  for  gas  and  was  not  a  consumer. 
The  gas  company  was  required  by  law  to  turn  on  the  gas 
where  an  application  therefor  was  made,  as  this  was 
part  of  the  duty  imposed  by  law  on  the  company  to 
supply  gas  and  is  liable  for  the  act  of  a  third  person  in 
turning  on  the  gas,  when  the  company  permitted  the 
applicant  to  turn  on  the  gas  where  the  plans  of  the  pip- 
ing were  furnished  and  connection  with  the  meter  was 
made,  but  would  not  be  liable  for  the  acts  of  a  stranger 
who  might  turn  on  the  gas  without  the  knowledge  of  the 
company  or  its  consent. 


Injury  to  Tenant.  301 

Fourth  —  The  company  should  inspect  the  pipes 
which  come  out  in  open  space  and  could  insist  on  mak- 
ing- such  inspection  or  refuse  to  furnish  gas. 

Fifth — The  company  in  making  a  delivery  is  not  an 
insurer,  but  is  bound  to  that  degree  of  care  which  may 
be  apprehended  from  the  escape  of  gas.  The  company _ 
is  not  bound,  however,  to  make  frequent  inspections  of 
the  pipes  over  which  the  company  has  no  control,  but 
only  an  inspection  must  be  made  when  gas  is  first  turned 
on  in  the  building. 

Sixth — The  question  whether  the  boy  was  guilty  of 
contributory  negligence  in  using1  the  light  was  for  the 
jury  to  determine.1 

So  where  a  gas  company  had  been  furnishing'  gas  to 
an  apartment  building  and  one  of  the  apartments  became 
vacant  and  the  company  which  owned  and  controlled 
the  meter  had  it  removed  but  failed  to  cap  the  end  of  the 
pipe  when  the  meter  was  removed  and  the  gas  flowed 
through  the  pipe  and  found  its  way  to  the  apartments  of 
a  tenant  below,  the  gas  company  was  liable  for  injuries 
received  by  the  tenant  by  reason  of  an  explosion  of  the 
gas  where  the  tenant  brought  a  match  in  contact  with  it 
in  searching  for  a  leak.  The  tenant  was  not  barred  from 
a  recovery  against  the  gas  company  because  he  entered 
the  flats  without  permission  of  the  landlord,  as  the  gas 
company  could  not  raise  the  question  of  trespass  when 
no  trespass  was  committed  against  the  gas  company. 
The  tenant  although  a  graduate  in  chemistry  and  an 
experienced  druggist,  and  he  knew  the  explosive  na- 
ture of  gas,  was  not  barred  from  recovering  because  he 
brought  a  match  in  contact  with  the  gas  when  there  was 
an  open  window  in  the  room  where  the  gas  was  escaping 
and  he  had  no  reason  to  apprehend  that  gas  would  ac- 
cumulate in  dangerous  quantities.  The  question  of  neg- 
legence  is  for  the  jury  to  determine  in  all  such  cases,  and 
although  the  courts  in  the  case  of  Lanigan  v.  New  York 
Gas  Light  Co.,  71  N.  Y.,  29;  Consumers  Gas  Co.  v.  Crocker, 

1.  Schermer  vs.  Gas  Light  Co.,  147  N.  Y.,  529;  42  N.  E.,  202;  30 
L.  R.  A.,  C53. 


302  Accumulation  oj  Gas  in  Basements. 

82  Md.,  113;  Oil  City  Gas  Co.  v.  Robinson,  99  Pa.,  1;  and 
Bartlett  v.  Boston  Gas  Light  Co.,  117  Mass.,  533,  used  strong 
language  against  the  plaintiff's  right  to  recover,  yet 
the  court  did  not  say  the  plaintiff  was  not  entitled  to 
recover  but  left  it  to  be  determined  by  a  jury,  so  that 
fact  modified  the  strong  language  used  by  the  court  in 
the  opinions. t 

SEC.  6.  ACCUMULATION  OF  GAS  IN  CELLARS  FROM 
DEFECTIVE  STREET  MAINS. — A  prima  facie  case  of  negli- 
gence is  made  against  a  gas  company  when  it  appears 
that  an  explosion  took  place  and  that  the  plaintiff  had 
his  service  pipe  inspected  on  the  day  of  the  explosion 
and  no  leaks  were  found,  and  a  short  time  after  the  ex- 
plosion took  place  the  gas  company's  pipes  on  the  street 
about  thirty-six  feet  distance  from  the  plaintiff's  house 
were  dug  up  and  before  the  pipes  were  reached  a  strong 
smell  of  gas  was  perceptible,  and  a  vapor  arose  above 
the  pipes,  and  the  pipes  were  fractured  or  torn  apart  at 
the  joints  and  the  surface  of  the  street  was  hard  packed, 
but  below  the  surafce  the  soil  was  made  up  of  loose  rock 
and  shale  and  very  porous,  and  that  an  underground  drain 
extended  from  the  house  to  the  gas  main  and  was  open 
at  the  end  near  the  gas  main,  and  that  gas  could  not 
escape  from  any  other  place  but  from  the  service  pipe 
or  gas  main.  In  such  a  case  the  gas  company  cannot 
escape  liability  because  its  pipes  were  injured  by  the 
construction  of  a  sewer.  In  this  regard  the  court  said: 
"If  such  injury  to  a  gas  main  be  the  natural  and  prob- 
able consequence  of  the  construction  of  a  sewer  in  close 
proximity  to  it,  and  the  defendant  had  knowledge  or 
ought  to  have  knowledge  of  the  construction  of  this  par- 
ticular sewer,  it  was  its  duty  to  effectually  guard  against 
the  damage  that  was  likely  to  be  sustained.  It  could 
not  shift  the  responsibility  upon  the  municipality  or  its 
contractor.  Whether  the  notoriety  attending  the  con- 
struction of  a  sewer  ought  to  be  sufficient  to  apprise  the 
gas  company  with  a  proper  system  of  inspection,  with 

1.  Peoples  Gas  Light  Co.  vs.  Amphlett,  93  111.  App.,  194- 


Notice  of  the  Escape  of  Gas  to  the  Vendor.  303 

knowledge  of  a  leak  in  a  shorter  time  than  that  which 
elapsed  from  the  construction  of  the  sewer  and  a  discov- 
ery of  the  leak  after  the  explosion,  was  a  question  for 
the  jury.1  So  where  gas  escapes  from  a  defective  plug" 
in  a  gas  main  through  the  sewer  of  the  plaintiff  and  it 
exploded  and  wrecked  the  plaintiff's  house,  the  question^ 
of  negligence  of  the  owner  of'gas  and  contributory  neg- 
ligence on  the  part  of  the  plaintiff  was  for  the  jury.  In 
this  case  gas  was  smelled  at  and  near  the  leak  a  week  or 
ten  days  before  the  explosion,  and  one  of  the  patrolmen 
of  the  city,  which  owned  and  supplied  the  gas,  testified 
to  the  same  fact.  The  fact  that  gas  was  smelled  was 
evidence  of  a  leak  which  was  dangerous  and  offensive, 
and  it  might  be  supposed  that  the  city  had  notice  from 
the  time  which  elapsed  and  from  the  fact  the  patrolman 
knew  of  it  whose  duty  it  was  to  report  such  leaks.  But 
if  the  plaintiff  knew  its  dangers,  he  should  have  removed 
from  the  house  or  he  would  be  guilty  of  contributory 
negligence.  The  owner  of  the  house  was  not  bound  to 
know,  however,  that  common  air  and  gas  mixed  are  ex- 
plosive, as  such  knowledge  is  imputed  only  to  experts 
and  chemists  or  the  like  calling,  and  not  to  men  in  the 
ordinary  walks  of  life.  Nor  was  such  person  bound  to 
keep  his  sewer  in  good  repair  so  that  gas  could  not  reach 
his  house  through  it,  as  the  sewer  was  not  constructed 
with  the  view  of  shutting  out  gas  which  was  permitted 
to  escape  from  gas  mains.*  So  where  a  city  constructed 
a  sewer  parallel  with  a  gas  main  and  between  the  main 
and  buildings,  supplied  with  gas,  and  that  the  sewer 
was  put  along  the  line  of  an  old  sewer  but  deeper,  and 
in  putting  down  the  sewer  the  trench  was  dug  below  the 
service  pipes  that  extended  from  the  main  to  the  build- 
ings, abutting  on  the  street,  and  the  service  pipes  crossed 
the  sewer  and  were  broken  because  large  lumps  of  frozen 
earth  and  rock  were  thrown  into  the  trench,  and  the 
frozen  earth  thus  thrown  into  the  sewer  thawed  and  car- 
ried the  service  pipes  down  with  it,  and  the  pipe  became 

1.  Koelsch  vs.  Philadelphia,  152  Pa.,  355;  18  L.  R.  A.,  759. 

2.  Kibele  vs.  Philadelphia,  105  Pa.,  St.  41. 


304  Injuries  to  Persons  on  the  Street. 

displaced  and  broken,  the  vendor  was  held  liable  for  dam- 
ages to  a  building*  resulting1  from  an  explosion  of  gas 
which  escaped  from  the  service  pipes  through  the  ground 
and  the  old  sewer  connection  to  the  basement  of  a  build- 
ing" where  it  exploded.  The  company  was  liable  without 
notice  if  the  defects  were  in  the  pipes,  or  if  the  breaks 
resulted  from  the  manner  of  putting  in  the  pipes.  If  the 
injuries  resulted  from  the  manner  the  trench  was  filled 
by  the  city  the  gas  company  was  bound  to  see  that  the 
trench  was  properly  filled  so  that  its  pipes  were  not  in- 
jured, and  was  bound  to  know  that  the  sewer  crossed  the 
service  pipes  and  that  injury  would  result  to  the  pipes 
from  the  manner  the  trench  was  filled.  The  law  exacts 
of  the  company  such  care  and  caution  in  the  location, 
structure  and  repair  of  its  pipes  as  is  commensurate  with 
the  dangerous  commodity  in  which  it  deals,  and  is  held 
to  strict  account  for  all  damages,  even  though  the  city 
was  negligent  in  filling  the  , trench,  for  the  city  had  a 
right  to  build  the  sewer,  and  a  duty  rested  upon  the  gas 
company  to  protect  its  pipes.1 

So  where  a  person  who  sustained  injuries  had  no 
notice  that  gas  was  escaping  and  the  gas  company  had 
notice  that  gas  was  escaping,  a  verdict  by  a  jury  will  not 
be  set  aside,  although  the  only  evidence  to  show  negli- 
gence was  that  a  former  occupant  of  the  house  where 
the  explosion  occurred  smelled  gas  about  a  year  before 
and  the  smell  continued  up  to  about  the  time  of  the  ex- 
plosion.* 

SEC.  7.  INJURIES  TO  PERSONS  ON  STREETS  AND 
HIGHWAYS — INSTRUCTIONS. — In  an  action  against  a  gas 
company  Ihe  proof  showed  that  an  explosion  of  illumi- 
nating gas  took  place  on  a  street  and  that  it  had  accum- 
ulated in  a  sewer  manhole,  and  that  some  time  prior  the 
smell  of  gas  was  found  near  the  place,  and  that  after  the 
explosion  the  gas  company's  pipes  were  found  broken, 
and  after  the  pipes  were  repaired  the  smell  of  gas  ceased, 
and  that  gas  would  penetrate  the  soil  and  could  reach 

1.  Aurora  Gas  Light  Co.  vs.  Bishop,  81  111.  App.,  494. 

2.  Werner  vs.  Ashland  Lighting  Co.,  84  Wis.,  652;  54  N.  W.,  996. 


Instructions  as  to  Negligence.  305 

the  manhole  in  the  sewer  some  distance  from  the  break 
in  the  pipes,  and  that  there  were  no  other  gas  companies' 
pipes  near  by,  and  that  the  gas  company  relied  for  the 
report  of  leaks  upon  its  servants  who  lit  the  street  lamps, 
put  in  meters  and  made  general  repairs.  The  gas  com- 
pany was  held  to  be  negligent  in  not  discovering  the  leak. 
and  was  liable  for  the  injuries  to  a  boy  whose  clothes 
were  set  on  fire  by  the  explosion  and  thus  caused  him  to 
be  badly  burned.  So  an  instruction  to  the  jury:  "That 
if,  from  the  evidence,  they  found  that  just  prior  to  the 
explosion  illuminating  gas  was  found  in  sufficient  quan- 
tities to  cause  an  explosion  was  present  in  the  manhole 
when  it  occurred,  and  that  the  circumstances  and  condi- 
tions which  preceded  and  followed  the  presence  of  gas 
in  said  manhole,  and  especially  the  coincidence  that  the 
smell  of  gas  ceased  to  pervade  the  atmosphere  in  the  vi- 
cinity of  the  manhole  as  soon  as  the  defendant  repaired 
the  break  in  the  pipe,  were  such  as  to  exclude  all  other 
theories  other  than  the  plaintiff's  theory  which  traced 
the  origin  of  the  gas  to  the  broken  pipe  of  the  defendant, 
then  they  might  regard  the  plaintiff's  theory  as  legally 
established  and  find  a  verdict  in  accordance  therewith," 
is  correct. 

An  instruction,  which  was  as  follows:  "If  the  jury 
find  from  the  evidence  that  the  defendant  brought  into 
the  street  an  inflammable  and  explosive  fluid  capable  of 
escaping  in  such  a  way  as  to  produce  the  casualty  com- 
plained of  and  that  such  casualty  actually  occurred,  then 
the  facts  thus  found  may  be  treated  as  sufficient  to  jus- 
tify an  inference  that  the  casualty  was  due  to  the  agency 
or  negligence  of  the  defendant  in  the  absence  of  proof 
that  it  was  otherwise,"  is  not  open  to  the  criticism  that 
the  jury  must  find  the  defendant  guilty  because  gas  was 
brought  into  the  street  and  injured  the  plaintiff  when 
another  instruction  told  the  jury  that  "as  you  will  doubt- 
less understand  from  the  evidence  which  has  been  given, 
and  the  arguments  of  counsel  and  from  the  instructions 
I  have  already  given  you,  the  question  in  the  case  is 
whether  the  accident  was  due  to  the  negligence  of  the 


306    Injury  to  Property  from  the  Escape  of  Natural  Gas. 

employees  of  the  gas  company,  and  whether,  through 
that  negligence,  the  gas  found  its  way  through  the  man- 
hole and  was  in  some  manner  ignited  and  caused  the 
flames  to  come  out  and  set  the  boy's  clothing  on  fire," 
because  all  the  instructions  must  be  taken  as  a  whole, 
and,  when  read  as  a  whole,  the  tenor  of  the  instructions 
is  that  the  gas  company  must  be  guilty  of  negligence.1 

SEC.  8.  INJURIES  TO  PROPERTY  FROM  THE  ESCAPE 
OF  NATURAL  GAS.— A  plaintiff  set  up  that  he  was  the 
owner  of  a  certain  dwelling  house  and  lot  of  the  value 
of  $1,250,  and  the  house  contained  personal  property  of 
the  value  of  $750;  that  the  defendant  was  a  corporation 
organized  under  the  laws  of  the  state  of  Indiana,  and 
was  engaged  in  furnishing  natural  gas  for  fuel  and  light 
to  a  certain  town,  and  had  and  owned  mains  and  pipes 
laid  in  the  streets  of  the  said  town;  and  the  company  so 
carelessly  laid  and  constructed  said  pipes  and  gas  mains 
as  to  allow  and  permit  such  gas  to  flow  and  escape  from 
its  line  of  pipe  through  which  such  natural  gas  was  being 
conducted,  over,  upon,  through  and  into  the  plaintiff's 
lot  and  dwelling,  and  to  accumulate  therein  in  such 
quantity  that  the  same  came  in  contact  with  a  lighted 
lamp  therein,  without  the  fault  of  the  plaintiff,  and  ex- 
ploded and  set  fire  and  destroyed  the  building  and  its 
contents  without  any  fault  of  the  plaintiff;  to  her  dam- 
ages in  the  sum  of  $2,000. 

The  complaint  was  held  sufficient  to  show  that  the 
gas  company  owed  a  duty  to  the  property  owner  of  the 
town  to  use  reasonable  and  ordinary  care  in  putting 
down  its  pipes  and  main  so  as  not  to  permit  the  escape 
of  gas  therefrom  in  such  quantities  as  to  become  danger- 
ous to  life  and  property.  The  gas  company  owed  the 
duty  to  the  public  because  the  company  occupied  public 
streets  for  its  own  special  and  extraordinary  use  in  con- 
ducting an  article  known  to  be  in  a  high  degree  inflam- 
mable and  explosive.  The  fact  that  the  complaint  did 
not  allege  that  the  gas  passed  from  a  leak  in  the  mains 

1.  Tiehr  vs.  Consolidated  Gas  Co.,  51  App.  Div.,  446;  65  N.  Y. 
Supp.,  10. 


Wrongful  Increase  of  Pressure.  307 

through  the  soil  in  safficient  quantities  to  cause  an  ex- 
plosion in  the  house  is  not  insufficient  because  the  court 
cannot  know  judicially  whether  gas  will  so  pass  through 
the  soil  or  not,  therefore  the  court  cannot  take  notice 
that  the  complaint  charges  an  impossibility.1  A  com- 
plaint charged  that  a  natural  gas  company  was  engaged 
in  the  business  of  furnishing  natural  gas  for  fuel  and 
lighting  purposes,  and  that  the  company  laid  pipes  for 
its  conveyance  under  streets,  and  that  said  pipes  were 
laid  in  front  of  a  certain  building,  and  that  the  gas  com- 
pany had  negligently,  carelessly  and  knowingly  permit- 
ted and  allowed  the  said  pipes  to  become  and  remain  in 
bad  repair,  and  the  pipes  in  front  of  the  building  had 
become  rusted,  rotten  and  incapable  of  controlling  and 
retaining  the  gas,  through  the  negligence  of  the  gas 
company,  and  had  permitted  the  same  to  remain  in  such 
condition,  and  the  gas  escaped  from  said  pipes  and  pene- 
trated the  ground  and  found  its  way  to  a  building,  and  was 
set  on  fire  and  exploded,  and  caused  the  building  to  fall, 
and  the  plaintiff's  husband  was  buried  under  the  falling 
building  and  was  burned  to  death  without  any  negligence 
on  his  part,  and  there  was  a  further  charge  that  the  gas 
company  dangerously  increased  the  pressure  considering 
the  unsafe  condition  of  the  pipes.  The  complaint  was  suf- 
ficient to  charge  the  company  with  negligence,  which  was 
the  proximate  cause  of  the  injury,  and  the  complaint  was 
sufficient  without  charging  that  the  gas  company  was 
negligent  in  the  breaking  of  the  pipe  and  escape  of  the 
gas,  and  its  percolation  through  the  earth  to  the  building. 
The  gas  company  was  bound  to  anticipate  these  results 
when  it  maintains  defective  pipes  and  it  turns  on  the  gas 
at  an  excessive  pressure.2 

SEC.  9.  WRONGFUL  INCREASE  OF  PRESSURE  WITH- 
OUT NOTICE  OR  WARNING. — A  complaint  against  a  de- 
fendant set  up  that  the  party  injured  was  a  consumer  of 

1.  Mississinewa  Min.  Co.  vs.  Patton,  129  Ind.,  472;  28  N.  E. 

1113. 

2.  Alexandria  Min.  &  Expl.  Co.  vs.  Irish,  16  Ind.  App.,  534;  44 

N.  E.,  680. 


308  Negligent  Increase  of  Pressure. 

natural  gas  for  fuel  and  light  and  the  defendant  was  en- 
gaged in  the  business  of  supplying  natural  gas  for  these 
purposes,  and  that  the  party  injured  had  a  certain  dwell- 
ing house  on  a  certain  lot  and  that  he  resided  in  said 
house  with  his  family,  and  that  the  person  injured  was 
a  customer  of  the  gas  company  in  the  use  of  gas  and  that 
he  had  his  stoves  connected  with  the  gas  mains  of  the 
defendant,  and  that  on  a  certain  day  the  pressure  of  gas 
was  higher  than  it  was  necessary  and  was  higher  than 
it  had  been  for  some  several  weeks,  and  that  the  gas 
company  through  its  agents,  without  notice  to  the  per- 
son injured,  negligently,  carelessly  and  unskillfully  and 
recklessly  and  without  due  regard  for  the  safety  of  the 
property  of  the  plaintiff,  increased  the  pressure  to  double 
the  amount  and  that  the  stoves  were  so  heated,  without 
notice  or  knowledge  to  the  person  whose  property  was 
injured,  that  the  stove  became  red  hot,  and  the  blaze 
passed  up  the  stove  pipe  and  chimney  and  set  fire  to  the 
building  and  the  residence  and  personal  property  of  the 
plaintiff  were  burned,  all  without  negligence  or  fault  on 
the  part  of  the  plaintiff. 

The  negligence  of  the  defendant  in  increasing  the 
pressure  without  any  contributory  negligence  on  the  part 
of  the  plaintiff  would  sustain  a  verdict  against  the  gas 
company.  The  fact  that  the  persons  whose  property 
was  burned  were  in  arrears  in  the  payment  of  gas  used 
would  not  defeat  the  right  to  recover  when  he  paid  for 
the  gas  consumed  in  a  cook  stove  and  not  for  gas  used  in 
a  heating  stove,  although  he  turned  on  the  gas  in  the 
heating  stove  without  the  consent  of  the  company,  but 
there  was  no  rule  of  the  company  preventing  him  from 
turning  on  the  gas.  The  fact  that  the  gas  was  not  paid 
for  or  that  consent  was  not  obtained,  did  not  make  the 
plaintiff  a  trespasser.  The  plaintiff  would  be  barred 
from  a  recovery  if  he  caused  an  unsafe  and  defective  flue 
to  be  built  and  this  defective  flue  was  the  cause  or  con- 
tributed to  the  accident.  If  the  flue  was  defective  the 
plaintiff  was  bound  to  know  that  fact,  and  if  he  built  a 
defective  flue  through  ignorance  or  through  the  ignor- 


Injuries  Caused  by  Natural  Gas.  309 

ance  of  the  mechanics  who  put  it  up,  it  would  be  no  ex- 
cuse on  his  part.  ' 'The  word  'negligence,' "  said  the  court, 
"implies  in  itself  that  there  is  not  necessarily  freedom 
from  ignorance  by  one  who  is  guilty  of  it."  When  there 
is  evidence  tending  to  show  such  negligence  it  must  be 
submitted  to  a  jury.  * 

A  complaint  is  sufficient  which  sets  up  that  the  com- 
plainant insured  a  certain  dwelling  against  fire  and  that 
the  building  was  destroyed  by  fire  without  any  negligence 
on  the  part  of  the  owner,  and  that  the  insurance  com- 
pany paid  the  loss  and  was  subrogated  to  the  right  of 
the  owner,  and  that  the  defendant,  a  corporation,  was 
engaged  in  supplying  natural  gas  to  consumers  for  light 
and  fuel  purposes,  and  that  the  defendant  supplied  the 
house  which  was  burned  and  that  the  defendant  in  the 
exercise  of  due  care  had  been  accustomed  to,  and  did 
previously  keep  a  watchman  during  the  night  which  was 
necessary  to  prevent  accidents  and  the  communication  of 
fire  to  buildings  into  which  gas  was  conveyed  and  sup- 
plied and  whose  duty  it  was  to  observe  and  regulate 
through  proper  machinery  and  appliances  the  pressure 
and  supply  of  natural  gass,  so  that  the  pressure  would 
not  become  too  great  during  the  night,  and  thereby  pre- 
vent excessive  and  overheating  of  stores,  and  thus  pre- 
vent the  communication  of  fire  to  buildings  by  such  ex- 
cessive heating;  and  further  the  supply  of  gas  became 
great  and  the  stoves  were  overheated  and  thereby  a  cer- 
tain building  was  burned  and  was  caused  wholly  on  ac- 
count of  the  negligence  of  the  defendant  in  not  having 
and  keeping  a  watchman  on  guard.  * 

Whether  the  fire  in  such  a  case  was  caused  by  a  de- 
fective stovepipe  is  a  question  for  the  jury  to  determine;3 
or  whether  a  flue  was  defective  is  also  for  the  jury  when 

1.  Alexandria  Min.  &  E.  Co.  vs.  Painter,  1  Ind.  App.,  587;  28 

N.  E.,  113. 

2.  Indiana  Nat.  Gas  Co.  vs.  New  Hampshire  Ins.  Co.,  23    Ind. 

App.,  298;  53  N.  E.,  485. 

3.  Ind.  Nat.  Gas.  Co.  vs.  New  Hampshire  Ins.  Co.,  23  Ind.,  App. 

298;  53N.E.,485. 


310  Natural  Gas  Explosion. 

the  evidence  is  conflicting1.1  So  where  a  complaint 
charges  that  the  gas  company  negligently  failed  to  sup- 
ply gas  in  a  safe  manner,  and  negligently  failed  to  con- 
trol the  pressure  of  gas,  and  that  it  negligently  provided 
a  defective  and  insufficient  regulator  to  control  the  pres- 
sure of  gas  and  that  the  pressure  was  increased  to  such 
a  high  degree  that  a  fire  was  caused  thereby,  no  recovery 
can  be  had  against  the  gas  company  unless  the  proximate 
cause  of  the  injury  was  due  to  such  negligence  as  charged 
in  the  complaint.  The  evidence  on  the  trial  showed 
that  the  fire  ignited  gas  in  a  room  leased  by  a  third  per- 
son and  that  the  fire  started  because  a  stove  in  which 
gas  was  consumed  was  defective  and  the  valves  were  so 
adjusted  that  the  stove  would  consume  a  larger  quantity 
of  gas  than  usual  so  as  to  make  a  better  fire  in  order  that 
some  flowers  owned  by  a  lessee  would  not  be  frozen. 
The  evidence  also  showed  that  the  gas  company  had 
desk  room  in  the  room  where  the  fire  originated  and  the 
lessee  kept  the  books  of  the  gas  company  there  and 
collected  gas  bills  due  the  company  and  also  the  di- 
rectors held  their  monthly  meeting  in  the  room,  but  the 
use  made  of  the  room  was  at  the  request  of  the  lessee. 
The  proximate  cause  of  the  injury  was  held  to  be  the 
improper  and  unsafe  adjustment  of  the  valve  in  the  stove 
by  the  lessee  and  as  the  valve  was  so  adjusted  for  the 
purpose  of  supplying  heat  to  flowers  owned  by  the  lessee, 
it  was  not  done  for  the  gas  company  or  for  the  lessee  as 
the  gas  company's  agent  but  for  the  purpose  of  preserv- 
ing the  lessee's  own  property  over  which  the  gas  com- 
pany had  no  control. 2  So  where  a  house  was  destroyed 
and  the  gas  company  was  charged  with  negligence  be- 
cause the  pressure  was  increased  and  had  also  charged 
the  mixers  were  changed  and  an  insufficient  one  was  sub- 
stituted, but  the  evidence  showed  that  the  mixer  did  not 
cause  the  injury  and  the  owner  of  the  building  had  full 

1.  Alexandria  Min.  &  Ex.  Co.  vs.  Painter,  1  Ind.  App.,  587;  28 

N.  E.,  113. 

2.  Westfield  Gas  &  M.  Co.  vs.  Hinshaw,  22  Ind.  App.,  499;  53  N. 

E.,  1069. 


Negligent  Increase  of  Gas  Pressure.  311 

control  of  all  the  gas  apparatus  except  the  mixers  and 
the  pressure  was  controlled  by  a  valve  and  the  owner 
adjusted  the  valve  before  leaving1  the  house  and  she 
knew  the  pressure  was  not  uniform,  the  owner  of  the 
building  destroyed  was  not  entitled  to  recover  because 
it  was  her  own  fault  which  caused  the  fire  in  not  turning 
the  valve  low  enough.  *  A  gas  company  is  negligent,  how- 
ever, if  for  any  cause  the  pressure  should  be  increased 
and  thus  overheat  the  stoves  and  radiators  without  no- 
tice to  the  consumers  and  their  property  is  destroyed  on 
account  of  such  increased  pressure  if  the  gas  company 
could  avoid  the  injury  by  keeping  a  watchman  to  ob- 
serve and  regulate  the  pressure. 2 

SEC.  10.  PRESSURE  NEGLIGENTLY  INCREASED,  CON- 
TINUED—DEGREE OF  CARE. — An  action  brought  against 
a  natural  gas  company  for  the  destruction  of  a  building 
caused  by  the  overheating  of  a  stove.  The  theory  of  the 
declaration  was:  "That  the  defendant  was  in  possession 
of  certain  wells  producing  natural  gas  and  was  engaged 
in  a  business  of  furnishing  natural  gas  through  its  pipe 
lines  to  consumers  for  fuel  and  domestic  heating  pur- 
poses for  a  consideration,  and  that  it  was  so  furnishing 
such  natural  gas  to  said  dwelling  house  under  a  contract 
for  a  valuable  consideration,  and  being  so  engaged  it  was 
the  duty  of  the  defendant  to  properly  control  and  regu- 
late the  quantity  and  pressure  of  the  said  natural  gas, 
so  far  as  the  same  was  necessary  for  fuel  and  domestic 
heat,  which  should  be  so  furnished  by  it  to  and  for  said 
dwelling  house;  and  it  was  averred  on  a  certain  day  and 
at  a  certain  county,  the  defendant  wrongfully,  negli- 
gently and  unlawfully  caused,  suffered  and  permitted 
the  said  natural  gas  to  run,  flow,  and  pass  out  of  said 
wells,  producing  natural  gas  and  out  of  and  from  said 
lines  of  pipe,  machinery  and  apparatus  of  which  the  de- 
fendant was  possessed,  in  and  through  the  said  burners, 

1.  Iback  vs.  Huntington  Light  &  Fuel  Co.,  23  Ind.  App.,  281;  55 

N.  E.,  249. 

2.  Ind.  Nat.  Gas  &  Ilium.  Co.  vs.  Long,  —  Ind.  App.,  — ;  59  N. 

E.,  410. 


312  Sufficiency  of  the  Complaint. 

heaters,  stoves,  grates,  pipes  and  line  of  pipes  of  the 
plaintiff  (which  were  averred  to  be  in  good  repair  and  fit 
for  the  purfiose  for  which  they  were  used)  in  so  great 
and  large  quantities  and  with  so  great  a  pressure  that 
the  said  burners,  heaters,  etc.,  of  plaintiff  were  then  and 
there  forced  open,  broken  and  thrown  apart  and  burst 
and  by  reason  thereof  the  said  great  and  large  quantities 
of  gas  did  escape  and  passed  out  of  said  pipes  and  burn- 
ers, etc.,  in  and  into  said  dwelling  house  and  was  ignited, 
burned  and  exploded  by  fires  then  and  there  lawfully 
kept  and  being  in  the  burners,  heaters,  etc.,  by  which 
means  the  house  was  burned  and  destroyed."  The  dec- 
laration stated  a  sufficient  cause  of  action  and  was  not 
bad  on  demurrer,  and  that  the  declaration  did  not  impose 
on  the  company  furnishing  gas  a  higher  degree  of  dili- 
gence than  that  required  by  law.1  The  gas  company  was 
engaged  in  the  business  of  transporting  and  selling  to 
consumers  an  article  of  trade  and  traffic  of  the  most  deli- 
cate, explosive  and  inflammable  nature  and  very  danger- 
ous, and  the  care  and  diligence  of  the  gas  company  must 
be  commensurate  with  the  danger  incident  to  the  hand- 
ling of  the  commodity.  The  terms  "negligence"  and 
"ordinary  care"  are  correlative.  "What  constitutes  or- 
dinary care  depends  upon  the  circumstances  of  each  par- 
ticular case.  It  is  such  care  as  a  person  of  ordinary 
prudence  would  exercise  under  the  circumstances."2  So 
where  a  corporation,  or  others,  furnish  natural  gas  to  the 
stoves,  heaters,  burners,  pipes,  lines  of  pipe,  machinery 
or  apparatus  of  another  to  be  used  for  the  purpose  of 
domestic  heat  and  fuel  in  a  dwelling  house,  the  corpora- 
tion or  persons  are  bound  to  exercise  such  care,  skill  and 
diligence  in  all  its  operations  as  is  called  for  by  the  deli- 
cacy, difficulty  and  dangerousness  of  the  nature  of  the 
business,  in  order  that  injury  may  not  be  occasioned  to 
others;  that  is  to  say,  if  the  danger,  delicacy  and  diffi- 

1.  Barrickman  vs.  Marion  Oil  Co.,  45  W.  Va.,  634;  32  S.  E.,  327; 

44  L.  R.  A.,  92. 

2.  Barrickman  vs.  Marion  Oil  Co.,  45  W.  Va.,  634;  32  S.  E.,  327; 

44  L.  R.  A.,  92;  Berns  vs.  Gaston  Gas  Coal  Co.,  27  W.  Va., 
285. 


Evidence  Sufficient  to  Establish  Negligence.  313 

culty  is  extraordinary,  great  and  extraordinary  skill  and 
diligence  are  required,  and  must  see  that  the  pressure  is 
no  greater  than  is  proper  for  such  purpose  and  must  see 
that  its  regulators  and  appliances  in  use  for  the  purpose 
of  regulating  the  pressure  are  in  a  proper  and  safe  con- 
dition. The  plaintiff,  however,  must  not  be  guilty  of 
negligence,  and  if  the  plaintiff  or  his  tenant  knows  that 
the  pressure  of  gas  is  variable  and  it  is  dangerous  to  use 
it,  the  plaintiff  would  be  guilty  of  contributory  negligence 
but  it  would  not  be  negligence  to  leave  the  gas  burning, 
although  the  pressure  was  uneven,  if  it  was  not  known 
to  be  dangerous.  So  if  the  fixtures  and  other  appliances 
were  in  an  unsafe  condition  and  it  was  the  duty  of  the 
plaintiff  or  his  tenant  to  maintain  them  in  good  condi- 
tion, and  the  defective  fixtures  contributed  to  the  injury, 
then  no  recovery  can  he  had.1 

SEC.  11.  EVIDENCE  IN  REGARD  TO  PRESSURE  AND 
ESCAPE  OF  GAS. — Evidence  of  the  condition  of  the  pres- 
sure as  indicated  by  the  lights  and  stoves  which  burned 
natural  gas  in  other  places  and  in  the  immediate  neigh- 
borhood of  the  accident,  and  all  are  furnished  gas  from 
the  same  main  and  the  other  appliances  are  the  same,  is 
competent  to  establish  the  pressure  at  the  place  of  the 
accident.*  Before  such  evidence  can  be  regarded  as  com- 
petent it  must  be  shown  that  the  conditions  at  the  other 
places  are  the  same  as  the  conditions  at  the  place  of  the 
accident.  Thus  where  it  is  shown  that  the  pressure  of 
gas  in  the  mains  is  the  same  throughout  a  city,  but  that 
the  mixers  were  not  of,  uniform  size,  the  sizes  being  not 
the  same,  and  some  mixers  would  let  in  a  large  amount 
of  gas  compared  with  mixers  of  a  smaller  size,  and  that 
the  consumer  at  the  place  of  using  the  gas  had  a  key 
under  his  control  and  management  by  which  the  con- 
sumer could  regulate  the  flow  of  gas  into  the  places  of 
consumption  and  could  turn  it  off  entirely,  the  mere 

1.  Barrickman  vs.  Marion  Oil  Co.,  45  W.  Va.,  634;  32  S.  E.,  327; 

44  L.  R.  A.,  92. 

2.  Barrickman  vs.  Marion  Oil  Co.,  45  W.  Va.,  634;  32  S.  E.,  327; 

44  L.  R.  A.,  92. 


814  Competency  of  Evidence. 

fact  that  stoves  in  another  part  of  the  city  were  made 
red  hot  and  dangerous,  cannot  be  considered  as  having 
any  bearing  upon  the  question,  and  such  evidence  is  not 
competent.1 

Proof  showed  that  natural  gas  leaked  the  year  before 
and  that  the  pipes  were  corroded  and  rusted,  and  that 
the  servants  tried  to  stop  the  leak  but  failed.  That  the 
main  pipe  was  30  inches  below  the  surface,  and  the  road 
above  was  macadamized,  and  that  the  building  was  about 
40  feet  from  the  main,  and  contained  no  explosives,  but 
consumed  natural  gas,  but  the  service  pipes  were  in  good 
condition.  After  the  explosion  considerable  gas  found 
its  way  to  the  basement  of  the  building,  in  considerable 
quantities,  and  the  earth  between  the  gas  main  and  the 
building  showed  that  gas  escaped  therein  and  vegetation 
commenced  to  die  about  the  place,  and  no  other  gas  pipes 
were  in  the  neighborhood.  The  gas  company  dug  from 
the  basement  of  the  building  toward  the  main  after  the 
explosion,  some  distance,  and  then  ceased  further  inves- 
tigation, but  the  earth  dug  up  was  black,  and  this  indi- 
cated gas  had  escaped  through  it.  Evidence  of  experts 
showed  that  gas,  when  it  escapes,  will  go  to  a  point  of 
the  least  resistance,  and  that  it  tends  toward  the  base- 
ment of  buildings,  and  there  is  no  limit  to  the  distance  it 
may  go  to  the  point  of  the  least  resistance  through  the 
ground.  Such  evidence  is  sufficient  to  establish  the  fact 
that  gas  leaked  from  the  mains  of  the  gas  company.  * 

So  where  gas  escaped  into  a  house  evidence  of  the 
effect  of  gas  on  other  inmates  of  the  house  is  competent 
but  the  evidence  "should  be  limited  to  the  effect  of  the 
gas  upon  those  who  have  in  common  and  under  similar 
circumstances  inhaled  it."8  But  evidence  that  people 
living  in  another  house  had  been  made  sick  is  not  com- 

1.  Indiana  Nat.  &  Ilium.  Gas  Co.  vs.  New  Hampshire  Ins.  Co., 

23  Ind.  App.,  298;  53  N.  E.,  485;  Washington  Tp.  F.  Co., 
Ap.  Fuel  &  G.  Co.  vs.  McCormick,  19  Ind.  App.,  663;  49 
N.  E.,  1085. 

2.  Alexandria  Min.  &  E.  Co.  vs.  Irish,  16  Ind.  App.,  534;  44  N. 

E.,  680. 

3.  Hunt  vs.  Lowell  Gas  Light  Co.,  8  Allen,  169. 


Evidence  as  to  Negligence.  315 

patent  because  they  inhaled  gas  which  had  escaped  into 
the  house  from  the  defects  in  the  gas  company's  pipes.  * 
Evidence  was  offered  on  the  trial  that  the  gas  company 
was  notified  that  gas  was  escaping  at  a  certain  point 
from  the  main  of  a  gas  company  and  a  search  was  made 
but  no  gas  was  found  to  be  escaping.  Some  time  there- 
after the  gas  company  was  again  notified  and  the  com- 
pany made  a  search  and  found  a  leak.  The  evidence 
tended  to  show  that  vines  and  vegetation  had  commenced 
to  die  on  the  premises  abutting  on  the  street  where  the 
gas  was  claimed  to  have  leaked.  The  evidence  showed 
that  the  surface  over  the  gas  pipes  was  packed  hard 
and  that  the  ground  below  was  loose  and  sandy  and 
there  was  evidence  tending  to  show  that  gas  would  pene- 
trate laterally.  With  this  evidence  before  the  court  it 
was  not  improper  to  ask  an  expert  what  effect  the  gas 
would  have  on  the  vegetation  where  it  penetrated  the 
soil  upon  which  the  vegetation  had  grown.2  So  evidence 
of  the  condition  of  trees  and  the  effect  the  escape  of  gas 
had  upon  them  at  other  places  is  competent  where  an 
action  is  brought  for  the  destruction  of  trees  at  a  par- 
ticular place.3  So  where  an  action  was  brought  against 
a  gas  company  and  a  large  number  of  witnesses  testify 
that  gas  was  smelled  at  a  particular  place,  the  evidence 
of  the  witnesses  will  not  be  considered  separately,  but 
all  the  evidence  of  the  witnesses  must  be  considered  to- 
gether to  fix  the  liability  on  the  gas  company.4  The 
mere  escape  of  gas  of  which  the  gas  company  had  notice 
will  not  make  the  gas  company  liable  where  a  great  fire 
prevailed  in  a  city  and  buildings  fell  and  broke  the  pipes 
of  the  gas  company  and  there  were  numbers  of  explo- 
sions and  no  direct  evidence  that  the  injury  was  caused 
by  an  explosion  of  gas  or  some  other  explosion.5 

1.  Emerson  vs.  Lowell  Gas  Light  Co.,  3  Allen,  410. 

2.  Wichita  Gas,  Electric  Light  &  P.  Co.,  9  Kan.  App.,  730;  59 

Pac.,  1085. 

3.  Rockford  Gas  Light  &  Coke  Co.  vs.  Ernst,  68  111.  App.,  300. 

4.  Kopleinvs.  Boston  Gas  Light  Co.,  165  Mass.,  411;  43  N.  E., 

478. 

5.  Hutchinson  vs.  Boston  Gas  Light  Co.,  122  Mass.,  219. 


316  Trees  and  Vegetation  Injured  ~by  Gas. 

SEC.  12.  SEARCHING  FOR  A  LEAK  IN  STREET  OR 
HIGHWAY. — An  action  was  brought  against  a  city  whose 
servant  in  searching  for  a  leak  lit  a  taper  and  moved  it 
along  the  surface  of  the  street  in  order  to  discover  the 
leak  and  the  taper  ignited  a  jet  of  gas  which  was  escap- 
ing and  the  servant  thus  ascertained  that  there  was  a 
leak  in  the  highway.  The  servant  attempted  to  extin- 
guish the  flame  by  covering  it  with  dirt  but  in  a  few 
moments  an  explosion  occurred  in  the  basement  of  a 
building  and  it  was  claimed  that  fire  passed  through  an 
underground  tunnel  into  the  basement  and  thus  caused 
an  explosion.  The  plaintiff  built  an  underground  tunnel 
on  the  day  before  from  the  main  sewer  on  the  street  to 
the  basement  of  the  house  for  the  purpose  of  drainage 
and  it  was  shown  neither  the  city  nor  the  servant  had 
notice  of  the  construction  of  the  tunnel.  There  was  no 
evidence  that  the  servant  in  using  the  taper  was  not  act- 
ing in  the  usual,  ordinary  and  reasonable  way  in  discover- 
ing a  leak  or  that  there  was  a  different  method  that  he 
might  pursue.  Negligence  was  held  not  to  have  been  es- 
tablished by  the  mere  fact  of  the  happening  of  the  explo- 
sion, and  the  relation  of  cause  and  effect  did  not  prove  it. 
Before  negligence  can  be  charged  it  is  necessary  to  show 
that  something  unusual,  unnecessary  or  improper  under 
the  circumstances  had  been  done.  The  facts  did  not 
justify  an  inference  of  negligence  and  the  city  was  not 
liable. l  So  where  gas  was  escaping  and  the  servants  of 
a  gas  company  drilled  a  hole  in  the  ground  to  find  out 
the  location  of  a  leak  and  then  applied  a  taper  and  the 
gas  caught  fire  and  was  communicated  to  a  building 
where  gas  had  accumulated,  and  was  conveyed  through 
an  underground  sewer,  the  servants  of  the  gas  company 
were  not  negligent  in  searching  for  the  leak  in  the  way 
they  did.  * 

SEC.  13.  INJURIES  TO  TREES  AND  SHRUBBERY  AND 
PLANTS  CAUSED  BY  THE  ESCAPE  OF  GAS. — Gas  escaped 
from  the  pipes  of  a  gas  company  and  entered  the  green- 

1.  Littman  vs.  New  York  City,  55  N.  Y.  Supp.,  383. 

2.  Aurora  Gas  Light  Co.  vs.  Bishop,  81  111.  App.,  449. 


Duty  of  Gas  Company.  317 

house  of  the  plaintiff  through  a  sewer.  It  was  held  to  be 
the  duty  of  the  gas  company  to  confine  its  gas  in  its  pipes 
and  to  keep  it  constantly  in  control  and  prevent  it  from 
escaping  into  buildings.  Where  the  evidence  is  conflict- 
ing the  court  will  not  disturb  the  verdict  of  a  jury  when 
the  jury  was  properly  instructed.  *  In  an  action  against 
a  gas  company  it  was  shown  that  gas  was  escaping  at  a 
point  for  some  time  before  the  ground  became  frozen* 
The  pipes  of  the  gas  company  became  corroded  by  reason 
of  an  electrical  current  and  escaped  beneath  the  frozen 
earth  to  a  greenhouse.  The  pipes  were  down  only  a 
few  years  and  were  in  good  condition  at  the  time  they 
were  put  down.  The  fact  that  gas  escaped  before  the 
ground  was  frozen  was  sufficient  to  notify  the  company 
that  there  was  a  leak  if  the  company  had  an  efficient  sys- 
tem of  inspection.  The  company  did  not  use  proper  care 
when  the  danger  of  the  article  the  company  dealt  in  was 
taken  into  consideration.2 

So  where  gas  had  escaped  from  the  mains  of  a  gas 
company  buried  on  a  public  street  and  the  company  had 
been  notified  that  gas  was  escaping  but  failed  to  find  the 
leak,  until  some  months  thereafter,  when  the  company 
was  again  notified  and  the  gas  penetrated  the  soil  and 
killed  the  vines,  trees  and  shrubbery  on  the  premises  of 
an  abutting  owner,  an  instruction  was  correct  which  told 
the  jury,  "that  the  defendant  being  authorized  by  the 
authorities  of  the  city  to  lay  down  its  pipes  and  carry 
gas  in  and  through  and  under  the  surface  of  the  streets 
to  various  parts  of  the  city,  it  was  its  duty  to  conduct  its 
whole  business  in  all  its  branches  and  in  every  particu- 
lar, with  ordinary  prudence  and  care,  care  and  diligence 
was  required  from  the  defendant  to  lay  and  maintain  its 
pipes  in  such  a  manner  so  that  damages  should  not  re- 
sult therefrom,  and  the  degree  of  diligence  to  be  used 
should  be  determined  from  the  danger,  if  any  there  was, 

1.  Armbuster  vs.  Auburn  Gas  Light  Co.,  56  N.  Y.  Supp.,  447;  21 

App.  D.,  158. 

2.  Serbrecht  vs.  East  River  Gas  Co.,  47  N.  Y.  Supp.,  262;  21 

App.  Div.,110. 


318  Explosion  of  Gas  Tank. 

in  the  use  of  such  an  element  as  gas. "  This  instruction 
was  held  by  the  court  to  state  the  law  correctly  as  ap- 
plicable to  the  facts.  The  gas  company  insisted  that  the 
instruction  should  not  be  given  unless  it  was  modified  by 
an  instruction  asked  by  the  gas  company,  to-wit:"  So  far 
as  this  case  is  concerned  the  degree  of  care  and  diligence 
to  be  exercised  is  to  be  determined  by  the  probability 
and  liability,  if  any,  of  escaping  gas  injuring  trees  and 
shrubbery;  in  other  words,  could  the  gas  company  rea- 
sonably apprehend  that  escaping  gas  from  such  a  leak 
as  you  may  find  existed,  if  any,  would  cause  the  destruc- 
tion of  the  trees,  shrubs  and  grass  of  the  plaintiff?"  The 
court  held  that  the  gas  company  was  not  entitled  to  such 
an  instruction  as  a  higher  degree  of  diligence  and  care 
is  imposed  on  the  gas  company  than  was  embodied  in 
the  instruction.  *  So  where  gas  escaped  and  caused  the 
destruction  of  trees  in  the  streets  of  a  city  and  an  owner 
of  a  lot  brought  an  action  against  the  gas  company  for 
the  destruction  of  the  trees  growing  on  the  street  abut- 
ting on  the  lot,  the  gas  company  was  liable  when  the 
gas  was  negligently  permitted  to  escape  although  the 
fee  in  the  street  was  in  the  city  in  trust  for  the  public, 
since  the  owner  of  the  lot  was  the  owner  of  the  trees, 
against  all  persons  except  the  city. 2 

SEC.  14.  EXPLOSION  OF  GAS  TANK  AND  OTHER  AP- 
PLIANCES BY  WHICH  SERVANTS  ARE  INJURED. — A  rail- 
road company  constructed  a  gas  plant  for  the  manufac- 
ture of  illuminating  gas  to  be  used  in  its  machine  shops 
and  sleeping  cars  on  the  road,  and  the  gas  plant  was 
built  after  a  certain  person,  who  was  killed,  was  em- 
ployed by  the  railroad  company.  A  voluntary  fire  de- 
partment was  organized  and  the  person  above  mentioned 
was  its  chief  and  the  fire  department  was  composed 
wholly  of  railroad  employees.  No  person  was  required 
by  the  railroad  company  to  join  the  fire  department  but 

1.  Wichita  Gas,  Electric  Light  &  Power  Co.  vs.  Wright,  9  Kansas 

App.,730;59Pac.,1085. 

2.  Rockford  Gas  Light  &  Coke  Co.  vs.  Ernst,  68  111.  App.,  300. 

See  also  Sect.  15,  Chap.  IX. 


Injury  to  Servants  from  Explosion.  319 

the  object  of  the  department  was  to  extinguish  fires 
which  may  break  out  at  the  shops  of  the  railroad  com- 
pany. The  railroad  company  furnished  an  apparatus 
and  located  the  water  plug's  and  pipes  and  permitted  the 
persons  who  composed  the  fire  department  to  drill  fre- 
quently during"  work  hours  and  they  received  pay  the 
same  as  if  they  were  engaged  at  their  regular  work.  The 
chief  was  allowed  an  hour  each  week  to  inspect  the  shops 
as  a  precaution  against  fire.  The  facts  showed  that  the 
relation  of  master  and  servant  existed  between  the  per- 
son injured  and  the  railroad  company.  And  the  railroad 
company  would  be  liable  for  his  death  if  it  was  guilty  of 
willful  neglect  in  the  construction  of  its  gas  plant.  The 
evidence  showed  that  the  death  of  the  chief  was  caused 
by  an  explosion  of  a  gas  tank  when  he  was  endeavoring 
to  put  out  a  fire  which  had  broken  out  in  the  company's 
shops.  The  person  injured  had  nothing  to  do  with  the 
manufacture  of  gas  but  was  employed  as  a  machinist, 
although  he  frequently  repaired  the  gas  apparatus.  It 
was  charged  that  the  company  was  negligent  in  having 
a  tar  roof  instead  of  a  slate  or  metal  roof,  and  that  the 
gas  tanks  were  too  close  to  the  fire  in  the  gas  retorts. 
The  company  was  held  not  to  be  guilty  of  willful  neglect, 
although  metal  roofs  are  generally  in  use  in  such  build- 
ings, where  roofs  of  the  kind  used  by  the  railroad  company 
were  in  use  and  the  gas  tanks  were  separated  from  the 
gas  retorts  by  a  brick  wall  and  were  some  twelve  feet 
away.  The  negligence  which  would  hold  the  railroad 
company  liable  must  be  a  reckless  indifference  to  the 
safety  of  the  public  or  an  intentional  failure  to  perform 
a  manifest  duty.  The  facts  did  not  come  within  the 
definition  and  the  company  was  not  liable.  *  So  where  a 
person  was  employed  as  master  machinist  and  a  fire  oc- 
curred in  the  gas  room,  and  he  was  ordered  by  a  superior 
to  break  down  a  door,  and  he  did  so,  and  the  wall  fell  on 
him  and  killed  him,  and  it  was  charged  that  the  roof  had 
burned  off  the  building  several  times,  and  that  thereafter 

1.  Collins  vs.  Cincinnati  N.  0.  &  T.  P.  Ry.,  23  Ky.  L.  R.,  670;  18 
S.  W.,11. 


320  Place  to  Work  Must  be  Safe. 

an  iron  roof  was  put  on  and  heavy  iron  girders  to  support 
the  roof  and  because  of  the  previous  fires  the  wall  became 
weak  and  was  unable  to  support  the  iron  roof  and  gir- 
ders, and  that  the  fire  in  the  gas  room  caused  the  girders 
to  expand,  and  the  gable  was  also  weak,  and  all  tended 
to  cause  the  wall  to  fall,  and  also  it  was  the  duty  of  the 
defendant  to  furnish  the  deceased  a  safe  place  to  work, 
the  allegations  were  held  not  sufficient  because  they  did 
not  show  that  the  deceased  was  not  acquainted  with  all 
the  alleged  defects  and  risks;  or  that  he  was  lately  em- 
ployed, or  that  the  wall  became  weak  during  his  employ- 
ment, or  that  he  did  not  have  charge  of  this  particular 
part  of  the  building  and  was  not  a  part  of  his  duty  to 
break  open  the  door,  or  the  building  or  gas  room  was  un- 
fit for  the  purpose  for  which  they  were  constructed.1 

SEC.  15.  INJURIES  TO  SERVANTS  CAUSED  BY  THE 
PLACE  BEING  UNSAFE  TO  WORK. — A  servant  of  a  gas 
company  received  injuries  while  he  was  assisting  to  raise 
a  gas  tank  over  a  building  because  some  boards  were  left 
on  a  scaffold  which  was  built  along  the  wall  of  the  build- 
ing over  which  the  tank  was  to  be  raised,  and  the  boards 
were  loose  and  in  an  unsafe  condition,  and  fell  because 
the  foreman  failed  to  steady  the  tank  which  shook  the 
board. 

The  master  was  held  bound  to  furnish  a  safe  place 
for  the  servant  to  work,  so  it  was  in  duty  bound  to  re- 
move the  board  which  caused  the  injury,  and  the  negli- 
gence of  the  foreman  who  was  held  to  be  a  fellow- servant 
with  the  servant  injured,  was  concurrent  with  that  of  the 
master.8  A  contractor  was  engaged  in  digging  a  trench 
and  laying  pipes  therein.  One  gang  of  his  men  dug  the 
trench,  and  another  gang  of  his  men  laid  the  pipes  in 
the  trench  after  it  was  dug.  The  master  is  bound  to 
know  the  walls  of  the  trench  are  in  a  safe  condition,  so 
that  they  will  not  fall  and  injure  the  servants  who  put 
in  the  pipes.  A  servant  so  engaged  who  was  injured  is 
not  guilty  of  contributory  negligence  when  no  danger  is 

1.  Allen  vs.  Augusta  Factory,  82  Ga.,  76;  8  S.  E.,  68. 

2.  Bagley  vs.  Consolidated  Gas  Co.,  34  N.  Y.  Supp.,  187. 


Defective  Ladders.  321 

apparent,  and  the  master  assures  him  that  the  walls  are 
safe. *  So  where  a  servant  of  a  gas  company  dug-  a  trench 
in  the  frout  of  a  boiler  and  left  it  in  an  unsafe  condition, 
and  another  servant  whose  duty  called  him  to  work  near 
and  about  the  ditch  in  firing-  the  furnace  of  the  boiler, 
and  was  injured  because  of  the  condition  of  the  trench, 
the  master  was  held  bound  to  furnish  a  safe  place~for 
him  to  work.  The  servant  was  held  not  to  have  assumed 
the  risk  because  the  servant  assumes  only  the  apparent 
and  ordinary  risks  of  his  employment,  and  such  risks  as 
are  incident  to  his  employment,  but  he  does  not  assume 
the  risks  of  defects  in  the  plant  itself,  and  did  not  as- 
sume the  risk  of  the  hole  made  in  front  of  the  boiler.2 
But  where  a  trench  was  dug-  by  a  city,  and  the  master 
had  no  control  over  it,  and  never  saw  the  trench,  and  the 
city  ordered  the  g-as  company  to  remove  some  pipe  be- 
longing- to  the  gas  company  from  the  trench,  the  gas 
company  is  not  liable  to  a  servant  sent  by  it  to  remove 
their  pipes,  where  the  walls  caved  in  on  him.8 

SEC.  16.  INJURIES  TO  SERVANTS  FROM  DEFECTIVE 
LADDERS. — A  person  was  employed  about  a  gas  plant  to 
make  g-eneral  repairs  and  had  been  so  employed  for  a 
number  of  years.  He  was  told  by  another  in  authority 
to  go  and  clean  a  condenser,  and  to  get  to  the  place,  it 
was  necessary  to  use  a  ladder  which  was  provided  by 
the  gas  company.  The  ladder  furnished  by  the  gas  com- 
pany had  no  spikes  in  the  end  which  rested  on  the  floor 
and  the  place  where  the  foot  of  the  ladder  rested  was 
covered  with  grease  and  oil  and  when  the  employee  as- 
cended the  ladder  it  slipped  and  the  employee  was 
thrown  to  the  ground  and  injured  and  as  the  employee 
claimed  the  injury  was  caused  by  the  absence  of  the 
spikes.  It  also  appeared  that  the  employee  told  the  of- 

1.  Schmidt  vs.  Gillen,  58  N.  Y.  Supp.,  450;  41  App.  Div.,  302; 

Baird  vs.  Reilly,  92  Fed.  E.,  884. 

2.  Frye  vs.  Bath  Gas  &  Electric  Light  Co.,  94  Mo.,  17;  46  Atl., 

804. 

3.  Hughes  vs.  Madden  &  Melrose  Gas  Co.,  168  Mass.,  397;  47  N. 

E.,125. 


322  Contributory  Negligence. 

ficers  of  the  gas  company  that  the  ladder  was  unsafe 
some  time  before  the  accident.  The  court  stated  the 
rule  to  be  that  an  employer  had  to  furnish  a  safe  appli- 
ance for  the  employee  but  where  the  person  injured  is  a 
man  of  some  skill  and  intelligence,  it  will  be  assumed 
that  he  had  sufficient  intelligence  to  comprehend  the 
natural,  ordinary  results  of  placing  the  foot  of  a  ladder 
without  spikes  or  other  appliances  and  without  being 
guarded  on  a  slippery  floor,  while  he  attempted  to  as- 
cend to  the  top.  The  attempt  to  ascend  the  ladder  un- 
der such  circumstances  was  negligence,  if  not  reckless- 
ness, and  was  a  bar  to  a  right  to  recover  on  the  ground 
of  contributory  negligence.1  So  where  an  employee's 
duty  was  to  light  lamps  in  front  of  his  master's  resi- 
dence and  to  reach  the  lamps  a  ladder  was  used. 
There  were  no  spikes  at  the  foot  of  the  ladder  and  the 
employee  reported  to  the  foreman  that  the  ladder  was 
insecure  because  of  the  absence  of  the  spikes  and  the 
foreman  promised  to  remedy  the  defect,  but  did  not  do  so 
at  the  time  and  upon  being  told  the  second  time  he  prom- 
ised to  have  the  ladder  made  secure.  The  defect  was 
not  remedied  and  the  servant  fell  from  the  ladder  one 
stormy  night  and  was  injured  because  of  the  absence  of 
spikes.  The  master  was  not  liable  because  the  work  and 
the  use  made  of  the  ladder  were  but  ordinary  labor  and 
the  servant  was  as  familiar  with  the  defects  as  the  mas- 
ter. The  rule  as  to  injuries  caused  by  complicated  ma- 
chinery does  not  apply.2  The  injury  which  the  servant 
received  must  be  the  consequences  resulting  from  the 
use  of  the  defective  ladder  and  if  the  defective  ladder 
was  only  an  incidental  and  not  the  cause  of  an  injury  the 
master  is  not  exonerated.  Thus  when  a  servant  was  or- 
dered to  remove  some  boards  which  were  above  a  gas 
generator  and  to  do  so  it  was  necessary  to  use  a  ladder 
and  the  servant  used  a  ladder  which  was  shorter  than 
the  one  he  was  directed  to  use  and  he  ascended  to  the 

1.  Corcoran  vs.  Milwaukee  Gas  Light  Co.,  81  Wis.,  191;  51  N.W., 

328. 

2.  Marsh  vs.  Chickering,  101  N.  Y.,  396;  5  N.  E.,  56. 


Directing  a  Servant  to  a  Place  of  Danger.          323 

place  directed,  although  the  ladder  was  not  long-  enough 
to  reach  it  and  he  used  other  means  to  reach  the  point 
and  he  was  overcome  with  gas  which  had  accumulated 
at  the  place  he  was  directed  to  go  and  he  fell  and  re- 
ceived injuries  and  an  action  was  brought  against  the 
gas  company  for  his  death  because  the  place  where  he 
was  sent  was  dangerous  and  the  master  was  negligent 
in  sending  him  to  such  a  place,  the  question  of  the 
length  of  the  ladder  in  such  a  case  is  immaterial  because 
it  had  nothing  to  do  with  the  fall  as  the  fall  was  caused 
by  inhaling  the  poisonous  gases  and  it  was  immaterial 
how  he  made  his  ascent.1 

SEC.  17.  NEGLIGENCE  OP  THE  MASTER  IN  DIRECT- 
ING A  SERVANT  TO  Go  TO  A  PLACE  OF  DANGER. — In  an 
action  against  a  company  engaged  in  the  manufacture 
of  illuminating  gas,  it  appeared  that  a  servant  met  his 
death  under  the  following  circumstances:  The  gas  com- 
pany had  just  completed  a  new  building  and  a  gas  ap- 
paratus was  put  in  and  a  test  was  being  made  of  it  by 
the  manufacturers  of  the  gas  apparatus.  One  test  had 
been  made  by  the  manufacturer  and  another  was  to  be 
made  on  the  day  of  the  accident.  The  gas  apparatus 
consisted  of  a  generator  located  below  the  main  floor 
and  three  upright  cylindrical  chambers  about  18  feet 
above  the  floor  on  which  they  stood.  The  first  was  called 
a  superheater,  the  second  the  condenser  and  the  third  a 
scrubber.  Coal  was  put  into  the  generator  and  burned 
there,  and  from  there  the  smoke  and  gases  passed  to  the 
superheater,  where  combustion  was  made  complete  and 
the  generation  of  illuminating  gas  was  commenced.  The 
gases  thus  produced  consist  of  carbonic  acid  gas  and  car- 
bonic oxide,  both  dangerous  to  human  life  when  inhaled. 
The  day  before  the  accident  coal  was  burned  in  the  gen- 
erator and  the  gases  were  allowed  to  pass  to  the  super- 
heater and  a  small  quantity  of  illuminating  gas  was 
manufactured.  A  valve  at  the  top  of  the  superheater 
was  left  open  and  the  gases  which  passed  into  the  super- 
heater escaped  and  found  their  way  toward  the  ceiling 

1.  Citizens  Gas  Light  &  Heating  Co.  vs.  O'Brien,  118  111.,  174. 


324  Expert  Evidence  as  to  Danger  of  Gas. 

of  the  gas  plant  and  a  fire  was  also  in  the  generator  at. 
the  time  and  the  valve  was  open.  Some  planks  were 
stretched  across  some  iron  girders  above  the  superheater 
and  at  a  point  close  to  the  ceiling,  and  the  foreman  of 
the  gas  plant  directed  them  to  be  removed  so  that  they 
would  not  be  there  to  start  a  fire,  and  a  servant  in  carry- 
ing out  the  order  ascended  a  ladder  and  reached  the  place 
in  safety.  After  he  got  to  the  place  he  attempted  to  re- 
turn without  accomplishing  the  work  and  got  as  far  down 
as  the  top  of  the  condenser  and  standing  there  a  few 
minutes  he  fell  to  the  ground  and  received  fatal  injuries. 
The  cause  of  action  charged  that  the  gas  company  was 
negligent  in  permitting  poisonous  gases  to  escape  into  a 
portion  of  the  room  where  the  deceased  was  directed  to 
go  and  that  he  was  negligently  directed  to  go  to  the 
place;  and  the  gas  company  could  have  known  of  the 
presence  of  gas  by  the  exercise  of  ordinary  care  but  the 
deceased  did  not  know  and  was  in  the  exercise  of  ordi- 
nary care. 

EXPERT  EVIDENCE. — It  was  competent  for  the  plain- 
tiff to  show  by  expert  testimony  that  hard  coal  burned 
in  the  generator  would  produce  carbonic  acid  gas  and 
carbonic  oxide,  and  that  both  were  poisonous  and  that 
carbonic  oxide  was  lighter  than  air  and  would  find  its 
way  toward  the  ceiling  for  the  purpose  of  showing  the 
presence  of  gas  at  the  point  where  the  deceased  fell,  but 
such  an  expert  cannot  say  that  gas  was  present  at  the 
point,  but  only  that  if  gas  escaped  it  would  have  a  tend- 
ency to  go  to  that  point  because  it  was  lighter  than  com- 
mon air.1 

So  a  witness  is  competent  to  testify  as  an  expert  as 
to  the  effect  of  gases  from  hard  coal  on  a  human  being, 
although  such  person  had  no  practical  experience  and 
all  his  knowledge  was  acquired  from  reading  standard 
authorities  and  study, 2  and  such  a  witness  may  be  asked 
what  his  practical  experience  was  with  such  gases. 8 

1.  Citizens  Gas  Light  &  Heating  Co.vs.  O'Brien,  15  111.  App.,  400. 

2.  Citizens  Gas  Light  &  Heating  Co. vs.  O'Brien,  19 111.  App.,  231. 

3.  Citizens  Gas  Light  &  Heating  Co.  vs.  O'Brien,  118  111.,  174. 


Injuries  to  Licenses.  325 

The  gas  company  was  guilty  of  negligence  when  it 
knowingly  permitted  gas  to  escape  in  the  building  and 
did  not  furnish  the  means  to  have  it  pass  out  into  the  open 
air  and  is  liable  for  the  death  of  a  servant  who  in  obedi- 
ence of  the  command  of  the  foreman  went  to  the  place  in 
the  room  and  was  overcome  with  gas  and  then  fell  and 
received  fatal  injuries  where  the  servant  was  without 
fault  and  did  not  know  of  the  presence  of  gas. x 

SEC.  18.  INJURIES  TO  PERSONS  WHO  HAVE  AN  IM- 
PLIED LICENSE  TO  ENTER  THE  PREMISES. — An  owner  of 
a  house  was  supplied  with  water  for  domestic  purposes 
by  a  company  and  to  ascertain  the  amount  of  water  used 
by  the  owner  a  water  meter  was  kept  on  the  premises 
and  at  certain  intervals  a  person  visited  the  house  to 
read  the  water  meter,  and  while  in  the  discharge  of  his 
duty  he  was  killed  by  an  explosion  of  gas  which  had  es- 
caped. The  owner  of  the  premises  owed  a  duty  to  the 
person  killed.  The  person  killed  was  not  a  mere  licensee 
but  was  rightfully  on  the  premises  under  an  implied  in- 
vitation of  the  owner,  and  the  owner  in  such  a  case  is 
liable  if  the  person  killed  was  not  guilty  of  contributory 
negligence,  and  the  mere  fact  that  he  smelled  gas  will 
not  make  him  guilty  of  contributory  negligence.8  So 
where,  in  pursuance  of  an  ordinance  passed  by  a  city,  a 
gas  company  was  required  to  place  upon  its  premises  a 
water  meter,  the  gas  company  was  held  bound  to  select 
a  safe  place  for  its  water  meter  so  that  persons  who  may 
be  required  to  come  to  the  place  to  read  the  meter  will 
not  be  injured.  If  the  gas  company  puts  the  meter  in 
such  a  place  as  to  require  a  light  to  read  it  and  gas  es- 
caped to  the  place  and  was  exploded  by  the  light  used 
by  the  person  who  was  reading  the  water  meter  the  gas 
company  is  liable.8 

SEC.  19.  LIABILITY  OF  A  LANDLORD  FOR  INJURIES 
EESULTING  FROM  DEFECTIVE  GAS  PIPES. — The  devisee 

1.  Citizens  Gas  Light  &  Heating  Co.  vs.  O'Brien,  118  111.,  174. 

2.  Finigan  vs.  Fall  River  Gas  Works,  159  Mass.,  311;  34  N.  E., 

523. 

3.  Washington  Gas  Light  Co.  vs.  Eckhoff,  22  Wash.  L.  R.,  656. 


326  Injuries  to  Tenants. 

of  a  landlord  was  held  not  liable  for  damages  caused  by 
an  explosion  of  gas  where  he  leased  premises  to  a  tenant 
and  the  tenant  who  then  occupied  the  premises  caused 
a  gas  apparatus  to  be  placed  in  the  building  for  his  own 
convenience,  and  the  tenant  hired  a  competent  and 
skillful  plumber  to  do  the  work,  and  after  the  gas  appa- 
ratus was  put  in  the  tenant  assigned  his  lease  to  another 
and  the  devisee  of  the  landlord  thereafter  made  a  new 
lease  to  the  tenant  who  was  assignee  of  the  lease.  The 
devisee  of  the  premises  was  also  owner  of  an  adjoining 
building  and  the  both  buildings  were  separated  only  by 
a  brick  wall  and  the  other  building  was  let  to  another 
tenant  to  be  used  for  a  grocery  store.  The  person  in- 
jured was  a  servant  of  the  latter  tenant.  The  complaint 
alleged  that  the  plumbing  was  defective  and  was  improp- 
erly put  in,  and  that  the  pipes  were  old  and  rusty,  and 
that  the  gas  escaped  in  the  cellar,  and  that  an  explosion 
occurred  without  any  fault  of  the  person  injured. 

The  person  injured  contended  that  the  premises  were 
in  a  defective  condition  when  the  lease  was  made  to  the 
tenant,  and  that  the  owner  was  liable  for  such  defects.  If 
the  owner  of  the  premises  had  no  notice  of  the  defective 
condition  of  the  plumbing,  that  fact  would  not  exon- 
erate the  owner  because  the  owner  had  the  power  to  as- 
certain if  any  defects  in  the  plumbing  after  the  former 
lease  was  surrendered  and  the  law  will  charge  the  owner 
the  same  as  if  such  owner  had  actual  notice  since  the  law 
charges  the  owner  who  demises  his  premises  with  the 
duty  of  knowing  its  condition  at  the  time  he  accepts  a 
tenant,  and  must  see  that  the  appliances  are  in  good  con- 
dition so  that  no  harm  will  come  to  others. 

The  landlord  is  not  an  insurer,  and  as  many  things 
may  be  brought  upon  the  premises  which  are  not  nuis- 
ances per  se,  but  are  dangerous,  the  landlord  is  released 
from  liability  when  he  exercises  reasonable  care  with  re- 
spect to  such  things,  and  is  released  from  all  claims  for 
damages  when  he  employs  and  relies  upon  persons  who 
are  skilled  in  the  work  charged  to  be  negligently  done 
and  has  therefore  exercised  care  to  see  the  premises  kept 


Liability  of  Contractor.  327 

in  a  safe  condition.  Where  the  evidence  showed  that  the 
former  tenant,  who  had  the  gas  appliances  put  in,  em- 
ployed a  competent  and  skillful  gas  fitter,  the  lessor  is 
is  relieved  from  liability,  although  this  particular  work 
may  have  been  done  in  an  unskillful  manner  since  the 
most  skillful  do  poor  work  at  times,1  and  the  only  rem- 
edy, if  any,  is  against  the  person  who  did  the  work.2 

1.  Metzger  vs.  Schultz,  16  Ind.  App.,  454;  43  N.  E.,  886. 

2.  Metzger  vs.  Schultz,  16  Ind.  App.,  454;  45  N.  E.,  619. 


NEGLIGENCE    AFFECTING    THE 
RIGHT   TO   RECOVER. 


CHAPTER  XVIII. 

SECTION  1.  DEGREE  OF  CARE  REQUIRED  OF  THE 
OWNER  OF  GAS  AND  THE  PERSONS  INJURED. — A  gas  com- 
pany that  is  engaged  in  the  business  of  vending  gas  is 
bound  for  the  consequences  of  its  neglect,  though  these 
consequences  were  not  and  could  not  by  ordinary  pru- 
dence have  been  anticipated;  and  the  person  injured  is 
bound  only  to  a  knowledge  of  the  probable  consequences 
of  the  facts  of  which  he  was  cognizant,  and  to  that  ordi- 
nary prudence  which  the  circumstances  require.1  The 
duties  of  a  gas  company  were  stated  by  an  eminent  court 
in  the  following  language:  "The  definitions  of  negli- 
gence which  have  been  attempted  imply  that  a  higher 
degree  of  care  and  vigilance  is  required  in  dealing  with 
a  dangerous  agency  than  in  the  ordinary  affairs  of  life 
or  business,  which  involve  little  or  no  risk  of  injury  to 
person  or  property.  While  no  absolute  standard  of  duty 
in  dealing  with  such  agencies  can  be  prescribed,  it  is 
safe  to  say,  in  general  terms,  that  every  precaution  sug- 
gested by  experience  and  the  known  dangers  of  the  sub- 
ject ought  to  be  taken.  This  would  require,  in  the  case 
of  a  gas  company,  not  only  that  its  pipes  and  fittings 
should  be  of  such  material  and  workmanship  and  laid  in 
the  ground  with  such  skill  and  care,  as  to  provide  against 
the  escape  of  gas  therefrom  when  new,  but  that  such 
system  of  inspection  should  be  maintained  as  would  in- 
sure reasonable  promptness  in  the  detection  of  all  leaks 
that  might  occur  from  the  deterioration  of  the  material 
of  the  pipes  or  from  any  other  cause  within  the  circum- 

1.  Oil  City  Gas  Co.  vs.  Robinson,  99  Pa.  St.,  1. 


Due  Care  Required  of  Both  Parties.  329 

spection  of  men  of  ordinary  skill  and  prudence."1  Gas 
companies  and  other  dealers  and  vendors  of  gas  are  re- 
quired to  use  the  highest  degree  of  care  to  see  that  no 
part  of  the  system  for  the  manufacture  and  transporta- 
tion of  gas  is  out  of  repair  so  that  the  public  or  any 
member  of  the  public  or  the  property  of  individuals  may 
not  be  jeopardized.  They  must  be  ready  at  all  times  and 
have  sufficient  force  and  means  at  hand  to  meet  any  or- 
dinary emergency.2  The  parties  engaged  in  the  distri- 
bution of  gas  are  engaged  in  a  quasi  public  business  and 
they  acquire  the  right  to  lay  their  pipes  in  the  streets 
from  the  states  or  cities,  hence  it  is  their  duty  to  use  the 
highest  degree  of  care.  No  standard  rules  can  be  laid 
down  as  to  the  care  and  prudence  that  must  be  exercised 
by  them,  but  "care  and  diligence  should  always  vary  ac- 
cording to  the  exigencies  which  require  vigilance  and 
attention,  conforming  in  amount  and  degree  to  the  par- 
ticular circumstance  under  which  they  are  to  be  exer- 
cised. But  it  must  be  equal  to  the  occasion  on  which  it 
is  to  be  used,  and  is  always  to  be  judged  of  according  to 
the  subject  matter,  the  force  and  danger  of  the  material 
under  the  defendant's  charge  and  the  circumstances  of 
the  case."3  These  are  the  obligations  imposed  on  the 
vendors  of  gas  and  if  they  fail  to  perform  their  duty  in 
this  regard  they  will  be  deemed  guilty  of  negligence, but 
these  obligations  do  not  require  gas  companies  to  keep 
up  constant  inspection  all  along  the  line  without  refer- 
ence to  the  existence  or  non-existence  of  leaks  or  the 
escape  of  gas.4 

The  complaining  party  must  not  be  negligent  but  he 
must  do  his  duty  to  avoid  injury,  but  such  a  high  degree 
of  care  and  caution  is  not  required  of  him  as  is  of  the 
vendors  of  gas,  since  he  is  bound  only  by  the  probable 
consequences  of  facts  of  which  he  has  notice  and  by 

1.  Koelsch  vs.  Philadelphia  Co.,  152  Pa.,  355;  25  Atl.,  522;  18  L. 

R.  A.,  759. 

2.  Holly  vs.  Boston  Gas  Light  Co.,  8  Gray,  129. 

3.  Holly  vs.  Boston  Gas  Light  Co.,  8  Gray,  129. 

4.  Koelsch  vs.  Philadelphia  Co.,  152  Pa.,  355;  18  L.  R.  A.,  759. 


330  Proximate  Cause  of  an  Injury. 

such  ordinary  care  as  the  circumstances  are  presented  to 
him.1 

SEC.  2.  PROXIMATE  CAUSE  OF  THE  INJURY  FROM 
THE  ESCAPE  OF  GAS. — To  hold  a  gas  company  liable  for 
damages  the  negligence  of  the  gas  company  must  be  the 
proximate  cause  of  the  injury  sustained.  In  other  words, 
if  two  persons  are  at  fault,  the  negligence  of  both  must 
be  concurrent  in  time.  So  if  a  gas  company  was  negli- 
gent in  allowing  gas  to  escape  and  enter  a  house,  and 
the  tenant  was  cognizant  of  that  fact  and  failed  to  notify 
the  gas  company  of  the  presence  of  the  gas  and  without 
any  precaution  on  his  part,  brought  a  lighted  lamp  in 
contact  with  the  gas  and  caused  the  gas  to  explode,  the 
gas  company  is  not  liable  because  the  injurious  effects 
were  brought  about  by  the  reckless  conduct  of  the  ten- 
ant. Whatever  care  was  requisite  for  the  protection 
of  the  premises  under  the  circumstances  was  due  from 
the  occupant.  The  defendant,  as  well  as  the  plaintiff, 
had  a  right  to  expect  and  require  it  of  him.  The  measure 
of  duty  and  the  extent  of  liability  of  the  defendant  in 
respect  to  the  property  exposed  to  injury  are  not  affected 
by  the  consideration  whether  the  occupant  who  had 
charge  of  it  is  in  fact  owner  in  fee  or  tenant  for  years  or 
at  will.  If  his  intervening  misconduct  produced  the  ex- 
plosion which  was  the  immediate  cause  of  the  injury  to 
the  building,  the  plaintiff  cannot  charge  the  legal  re- 
sponsibility for  the  result  upon  the  original  negligent 
act  or  omission  of  the  defendant.2 

Other  courts,  in  fixing  the  liability  of  gas  companies 
for  injuries  caused  by  negligence,  do  not  follow  the  doc- 
trine of  proximate  and  remote  cause.  Thus,  where  a 
civil  engineer  was  employed  by  a  city  to  superintend  the 
construction  of  a  sewer,  and  in  the  construction  of  the 
sewer  the  pipes  of  the  gas  company  became  out  of  order, 
and  gas  escaped  and  found  its  way  into  the  sewer,  and 
the  civil  engineer  knew  that  gas  escaped  and  that  it 
was  present  in  the  sewer,  but  the  engineer,  with  knowl- 

1.  Oil  City  Gas  Co.  vs.  Robinson,  99  Pa.,  1. 

2.  Bartlett  vs.  Boston  Gas  Light  Co.,  117  Mass.,  533.  ' 


Proximate  Cause  of  an  Injury.  331 

edge  of  these  facts,  entered  the  sewer  with  a  light,  and 
an  explosion  of  the  gas  followed,  and  he  was  injured, 
and  he  brought  suit  against  the  gas  company.  The  gas 
company  set  up  a  defense  that  its  failure  to  repair  the 
pipe  was  the  remote  and  not  the  proximate  cause  of  the 
injury,  and  it  was  not  liable.  The  court,  however,  held 
that  the  gas  pipe  and  sewer  were  in  the  immediate Ti~ 
cinity  of  each  other;  in  the  former  there  was  a  defect, 
and  from  it  gas  not  merely  from  absorption,  or  by  grav- 
ity, but  also  by  pressure,  found  its  way  into  the  sewer. 
"The  calamity  resulted  from  the  defendant's  negligence 
and  but  for  the  defective  pipe  there  would  have  been 
no  escape  of  gas;  and  if  this  was  not  the  proximate 
cause,  where,  we  ask,  was  the  intervening  one  by  which, 
the  consequences  of  the  accident  are  to  be  shifted  from 
the  defendant  to  some  other  person  or  thing?"  That  the 
city  contractor,  in  building  the  sewer,  disturbed  the 
pipes  and  so  caused  the  break,  has  not  the  effect  to  shift 
the  cause,  for  it  still  remains  that  it  was  the  escaping 
gas.  Neither  does  it  excuse  the  company,  if,  knowing 
the  defect,  neglected  to  make  the  necessary  repairs.  So, 
even  if  the  plaintiff,  by  his  own  negligence,  occasioned 
the  defects,  that  would  not  make  the  cause  less  direct, 
though  his  suit  might  thereby  be  defeated  on  the  ground 
of  contributory  negligence.  The  result  then  was  the  di- 
rect effect  of  the  cause  stated,  and  the  remaining  ques- 
tion was  one  of  negligence.  * 

SEC.  3.  PROXIMATE  CAUSE  OP  INJURIES,  CONTINUED. 
— A  person  who  was  injured  was  with  her  husband,  the 
owner  of  a  house,  and  had  been  receiving  gas  from  a  local 
gas  company  for  a  number  of  years  and  not  wishing  to 
use  gas  any  longer,  requested  the  gas  company  to  turn 
off  the  gas,  and  the  gas  company  sent  a  servant  to  shut 
off  the  gas  as  requested.  The  gas  was  shut  off  by  means 
of  a  key  about  four  feet  long,  which  was  inserted  in  the 
gas  box  in  the  street  where  the  gas  entered  the  service 
pipes  to  the  house  from  the  mains  in  the  street.  The 

1.  Oil  City  Gas  Co.  vs.  Robinson,  99  Pa.  St.,  1. 


332  Negligence  in  Shutting  Off  Gas. 

servant  inserted  the  key  and  turned  the  valve  and  thus 
shut  off  the  gas  and  then  entered  the  house,  leaving-  the 
key  in  the  box  in  the  condition  it  was  used  by  him  to 
turn  off  the  gas,  and  the  servant  of  the  gas  company 
after  entering  the  house  went  into  the  cellar  and  discon- 
nected the  pipes  with  the  gas  meter  and  tested  the  pipes 
to  see  that  no  gas  was  escaping.  The  meter  was  taken 
away  by  the  servant  and  the  pipes  in  the  cellar  were  left 
disconnected.  The  servant  did  not  remove  the  key  when 
he  left,  but  the  key  remained  in  the  position  it  was  left 
by  the  servant,  and  the  servant  returned  some  ten  min- 
utes thereafter  and  removed  the  key.  The  person  in- 
jured perceived  gas  in  the  basement  and  went  to  the 
cellar  to  open  the  door  to  let  air  in  the  cellar,  and  when 
she  went  into  the  cellar  it  was  night  and  she  took  a  lamp 
with  her.  And  when  she  opened  the  door  an  explosion 
followed  and  she  was  severely  injured.  The  servant  tes- 
tified that  he  did  the  work  properly  and  that  the  gas  was 
turned  off  before  he  entered  the  cellar  to  remove  the 
meter,  and  the  company  set  up  the  defense  that  if  gas 
escaped  from  its  mains  through  the  service  pipe,  some 
person  had  turned  the  gas  on  with  the  key  during  the  ab- 
sence of  the  servant  and  before  he  returned  to  remove 
the  key.  The  evidence  showed  that  the  gas  had  not  been 
turned  off  at  the  time  of  the  explosion  but  the  company 
contended  it  was  not  liable  because  the  intervening  negli- 
gence of  the  third  person  was  the  proximate  cause  of  the 
injury.  The  court  disregarded  the  contention  of  the  gas 
company  and  held  that  the  company  was  negligent  in 
leaving  the  key  in  the  position  it  was,  so  that  it  may  be 
turned  by  others,  and  the  turning  of  the  key  was  the 
natural  result  of  the  negligence  of  the  company's  agent 
and  that  a  man  of  ordinary  judgment  ought  to  foresee 
that  such  would  be  the  result.  When  the  company  un- 
dertook to  turn  off  the  gas  the  company  should  do  so 
properly  and  it  made  no  difference  whether  some  third 
person  turned  on  the  gas  or  whether  the  agent  turned  it 
on  when  the  key  was  taken  out.  And  the  company  was 
liable  for  the  negligence  of  the  agent  in  the  discharge  of 


Negligence  of  Others  than  Gas  Company.  333 

his  duty.1  So  when  the  pipes  of  a  gas  company  became 
broken  and  gas  escapes  and  enters  a  sewer  and  there  are 
other  gases  in  the  sewer  at  the  time  and  the  gas  which 
enters  forces  the  other  gases  along  the  sewer  and  private 
drains  and  thus  enters  the  home  of  an  individual  and  the 
occupant  becomes  sick,  the  gas  from  the  pipes  of  the  com- 
pany is  the  proximate  cause  of  the  injury  because  the 
other  gases  would  not  leave  the  sewer  if  not  forced  out 
by  the  gas  from  the  pipes  of  the  gas  company. 2 

So  where  there  was  a  break  in  the  service  pipe  which 
supplied  gas  to  a  home  and  the  gas  company  was  notified 
of  the  leak  and  sent  their  agent  to  repair  the  leak  which 
it  was  bound  to  do,  and  the  agent  took  a  light  into  the 
cellar  and  an  explosion  followed  and  an  infant  of  the 
owner  was  injured,  the  light  was  held  to  be  the  direct 
cause  of  the  injury,  although  the  father  may  have  injured 
the  pipe  and  caused  the  gas  to  escape.  The  father's  neg- 
ligence will  be  regarded  as  the  remote  cause.3 

SEC.  4.  PROXIMATE  CAUSE,  CONTINUED. — Where  a 
subway  was  constructed  in  the  streets  of  a  city  and  the 
pipes  of  a  gas  company  were  disturbed  in  the  construc- 
tion of  the  subway,  and  the  company  had  notice  of  that 
fact,  and  was  requested  to  furnish  an  inspector  to  see 
that  the  pipes  were  properly  cared  for  and  the  company 
failed  to  furnish  an  inspector  and  gas  escaped  and  in- 
jured a  person,  the  gas  company  is  not  entitled  to  an  in- 
struction that  the  company  is  not  liable  for  the  damages 
sustained  if  the  gas  which  escaped  had  been  set  on  fire 
by  some  third  person  where  such  ignition  ought  to  have 
been  foreseen  by  the  gas  company. 4  But  where  a  person 
was  employed  as  general  superintendent  by  a  person  who 
operated  a  gas  plant  for  his  own  private  use  and  the 
pipe  leading  to  the  hotel  of  the  owner  became  stopped 
or  clogged  so  that  gas  would  not  pass  through  it  and  the 

1.  Louisville  Gas  Co.  vs.  Gutenkuntz,  82  Ky.,  432. 

2.  Hunt  vs.  Lowell  Gas  Light  Co.,  8  Allen,  169. 

3.  Lannan  vs.  Albany  Gas  Light  Co.,  44  N.  Y.,  459. 

4.  Koplan  vs.  Boston  Gas  Light  Co.,  177    Mass.,  15;  58  N.  E., 

183. 


334  Negligence  of  Owner. 

superintendent  was  advised  by  the  person  who  con- 
structed the  plant  to  remove  the  weights  out  of  the 
bucket  attached  to  the  gasometer  and  he  did  as  was  sug- 
gested and  the  gasometer  turned  over  and  gas  escaped 
and  was  ignited  by  coming  in  contact  with  the  furnaces, 
the  owner  of  the  gas  plant  was  held  not  liable  as  the 
proximate  cause  of  the  injury  was  the  experiment  made 
by  the  superintendent  where  there  is  evidence  that  the 
owner  employed  competent  workmen  to  put  up  the 
plant  and  the  person  who  advised  him  to  make  the  ex- 
periment was  not  in  the  employ  of  the  owner.  In  such 
a  case,  the  clogging  of  the  pipe  had  no  connection  with 
the  accident  other  than  it  led  to  the  experiment. l 

SEC.  5.  PROXIMATE  CAUSE  OF  AN  INJURY,  CONTIN- 
UED.— Thus  where  a  mill  took  fire  and  there  were  pipes 
running  through  the  mill  which  contained  gas  to  supply 
the  mill  with  light  and  there  was  a  stop  cock  in  the 
pipe  outside  the  mill  by  which  the  gas  could  be  shut  off 
and  the  stop  cock  was  covered  up  by  a  third  person  and 
could  not  be  used  to  turn  off  the  gas  during  the  progress 
of  the  fire  in  the  building,  the  owner  of  the  building  can 
not  recover  against  the  party  that  caused  the  stop  cock 
to  be  covered  up  when  the  mill  took  fire  from  an  inde- 
pendent cause  and  the  owner  allowed  the  stop  cock  to 
remain  covered  for  more  than  a  year,  as  the  covering  of 
the  stop  cock  is  not  the  proximate  cause  of  the  injury, 
although  the  damage  may  have  been  increased  thereby.2 
But  where  a  gas  company  failed  to  put  a  stop  cock  in 
the  pipe  that  conveyed  gas  from  the  street  to  the  build- 
ing, so  that  the  gas  could  be  shut  off  in  case  of  danger, 
the  gas  company  is  liable  for  damages,  though  the  pipes 
were  sufficient  to  confine  the  gas  but  were  wrongfully 
severed  by  persons  who  entered  the  house  to  commit  a 
robbery,  because  stop  cocks  were  generally  used  as  a 
protection  and  the  damages  were  traced  directly  to  the 
absence  of  the  stop  cock.  The  liability  thus  imposed  on 

1.  Taylor  vs.  Baldwin,  78  Cal.,  517;  21  Pac.,  124. 

2.  Cochran  vs.  Philadelphia  &  R.  T.  Ry.  Co.,  143  Pa.,  565;  39 

Atl.,  596. 


Proximate  Cause  of  an  Injury  from  Escape  of  Oil.     335 

the  gas  company  is  based  on  the  common  law  duty  of  the 
company  to  use  due  care.1  A  gas  company  is  not  liable 
for  damages  caused  by  the  explosion  of  gas  where  gas 
had  been  escaping  in  the  basement  of  a  building  for  a 
long  time,  and  the  owner  was  aware  of  the  escape  and 
with  the  knowledge  of  the  escape  of  gas,  sent  a  servant 
into  the  basement  with  a  light  and  an  explosion  immedi- 
ately followed  as  the  proximate  cause  of  the  explosion 
is  the  bringing  of  a  light  in  contact  with  the  gas.2 

SEC.  6.  PROXIMATE  CAUSE  OP  AN  INJURY  FROM  THE 
ESCAPE  OF  OIL. — A  pipe  line  company  is  not  liable  for 
the  destruction  of  a  building  by  fire  where  the  pipe  line 
was  built  along  a  ravine  and  with  this  line  a  lateral  pipe 
line  connected  opposite  the  dwelling  house  destroyed; 
and  at  the  head  of  the  ravine  there  were  a  number  of  oil 
wells  and  tanks  filled  with  oil,  and  also  wells  at  the  head 
of  the  lateral  line  and  a  fire  broke  out  at  the  wells  on  the 
main  line  and  was  communicated  with  the  oil  in  the  tanks 
and  the  tanks  burst  from  the  effect  of  the  fire  and  the  oil 
flowed  down  the  ravine  and  carried  fire  along  with  it  and 
some  parties  from  a  village  below  threw  up  an  embank- 
ment opposite  the  dwelling  house  and  confined  the  oil 
which  was  burning  in  the  dam,  and  the  fire  being  thus 
confined  caused  the  lateral  pipe  to  burst  and  throw  a 
spray  of  oil  on  the  house,  and  thus  set  fire  to  the  house. 
The  proximate  cause  of  the  destruction  of  the  house  was 
the  fire  which  originated  at  the  oil  wells.3  So  where  a 
person  was  some  distance  from  the  scene  of  an  accident 
which  caused  oil  to  be  set  on  fire  and  voluntarily  came 
to  the  place  and  was  injured  by  an  explosion  of  oil  which 
was  on  fire,  the  proximate  cause  of  the  injury  is  the  com- 
ing of  the  party  to  the  place  where  he  was  injured.4  The 
owner  of  a  refinery  who  permits  oil  to  escape  is  not  lia- 
ble for  the  destruction  of  a  boat  moored  in  the  harbor 

1.  Holdings  vs.  Liverpool  Gas  Co.,  3  C.  B.,  1. 

2.  Lamgan  vs.  New  York  Gas  Light  Co.,  71  N.  Y.,  21. 

3.  Behling  vs.  South  W.  Pa.  Pipe  L.  Co.,  160  Pa.,  359;  28  Atl., 

777. 

4.  Cleveland,  C.  C.  &  St.  L.,  84  Fed.  R.,  935;  56  U.  S.  App.,  266. 


336  Concurrent  Negligence. 

where  the  oil  finds  its  way  to  the  water  and  is  set  on  fire 
by  a  person  negligently  throwing1  a  lighted  match  on  the 
oil  floating  on  the  surface  of  the  water  and  the  fire  is 
communicated  to  a  boat.  The  escape  of  oil  was  held  not 
to  be  the  proximate  cause  of  the  loss,  as  it  could  not  have 
been  foreseen  in  the  manner  it  was  brought  about. 1 

SEC.  7.  CONCURRENT  NEGLIGENCE. — In  an  action 
against  a  party  for  not  having  stop  cocks  in  a  pipe  so 
that  the  oil  could  be  shut  off  in  case  of  danger,  and  for 
the  removal  of  stop  cocks  which  had  been  in  the  pipes 
but  were  removed,  without  notice  to  the  servant,  the 
master  is  liable  to  the  servant  for  the  injuries  sustained 
by  the  escape  of  the  oil,  although  the  acts  of  a  fellow 
servant  contributed  to  the  injury.  When  the  oil  was 
found  to  be  on  fire  in  this  case  the  injured  servant  went 
to  the  place  where  the  stop  cocks  had  been,  but  found 
that  the  stop  cocks  were  absent  and  that  the  only  means 
to  prevent  the  spread  of  the  fire  to  tank  oil  cars  from 
which  the  oil  was  flowing  was  to  disconnect  the  pipes 
from  the  cars  and  then  the  cars  could  be  removed  from 
the  place  of  danger.  There  was  a  valve  in  the  car  and 
the  servant  injured  directed  another  servant  to  close  it 
and  the  servant  went  upon  the  car  to  close  the  valve  and 
others  had  assured  the  servant  injured  that  the  valve 
was  closed,  and  the  servant  then  disconnected  the  pipe 
and  the  oil  flowed  over  him  and  set  fire  to  his  clothing 
and  he  was  badly  burned  because  the  valve  was  not 
closed.  It  was  held  that  it  took  the  combined  negligence 
of  both  the  master  and  the  servant  who  attempted  to 
close  the  valve  to  produce  the  injury  and  the  master  was 
liable.2 

So  where  the  work  of  laying  gas  pipes  in  a  street 
was  let  to  an  independent  contractor  and  the  gas  com- 
pany had  no  control  over  the  work  and  all  the  persons 
who  were  performing  the  work  in  laying  the  pipes  were 
employed  by  the  independent  contractor,  but  the  gas 
company  propelled  gas  through  the  pipes  to  test  them 

1.  Neal  vs.  Atlantic  Ref.  Co.,  4  Pa.  Dist.  R.,  49. 

2.  Pullman  Palace  Car  Co.  vs.  Laack,  143  111.,  242;  18  L.  R.,  215. 


Contributory  Negligence.  337 

and  the  pipes  were  not  securely  joined  because  of  the 
negligence  of  the  independent  contractor,  and  the  gas 
sent  through  the  pipes  escaped  and  injured  a  workman, 
the  gas  company  was  held  liable  for  the  injuries  because 
it  was  the  duty  of  the  gas  company  to  see  that  the  pipes 
were  in  a  proper  condition  before  the  gas  was  propelled 
through  them.  The  combined  negligence  of  the  inde- 
pendent contractor  and  the  gas  company  was  the  cause 
of  the  injury,  and  both  may  be  sued  separately  or  jointly. * 
A  natural  gas  company  is  liable  for  injuries  to  a  boy  from 
the  explosion  of  gas  on  a  public  highway,  although  the 
contract  for  constructing  the  gas  main  was  let  to  an  in- 
dependent contractor,  and  the  work  was  not  yet  com- 
pleted or  turned  over  to  the  gas  company,  but  the  gas 
which  passed  through  the  pipes  was  being  used  by  the 
gas  company  to  supply  its  customers  and  the  pipes  so 
used  leaked  gas  and  caused  the  explosion.  Both  the  con- 
tractor and  gas  company  were  at  fault. 2 

SEC.  8.  CONTRIBUTORY  NEGLIGENCE. — When  an  ac- 
tion is  brought  for  injuries  sustained  by  reason  of  the 
negligence  of  another,  the  party  who  has  sustained  the 
injuries  must  not  fail  to  show  that  he  has  performed  his 
duty  to  avoid  the  injury.  Thus  a  person  cannot  recover 
damages  against  a  gas  company  when  gas  had  found  its 
way  to  a  house  for  ten  or  twelve  days,  and  no  notice  was 
sent  to  the  gas  company,  and  the  person  remained  in  the 
house  during  all  the  time  and  became  sick  from  the  gas 
which  found  its  way  to  the  house.  It  is  the  duty  of  the 
person  injured  to  give  notice  or  move  to  another  place 
to  live. 3  A  civil  engineer  is  guilty  of  contributory  negli- 
gence when  he  enters  a  sewer  with  a  light,  and  he  knows 
that  gas  is  escaping  therein,  and  is  presumed  to  know, 
from  his  occupation,  that  gas  mixed  with  common  air 

1.  The  Chicago  Economic  Fuel  Gas  Co.  vs.  Myers,  168  111.,  139; 

48  N.  E.,  66;  The  Chicago  Economic  Fuel  Gas  Co.  vs. 
Myers,  64  111.  App.,  270.    • 

2.  Lebanon  Light,  Heat  &  Power  Co.  vs.  Leap,  139  Ind.,  443;  39 

N.  E.,57;  39  L.  R.  A.,  432. 

3.  Hunt  vs.  Lowell  Gas  Co.,  1  Allen,  348. 


338  Contributory  Negligence. 

will  explode  when  a  light  is  brought  in  contact  with  it. * 
So  the  owner  of  a  building  is  negligent  when  he  is  aware 
that  gas  is  escaping  in  the  basement  of  the  building,  but 
has  disregarded  the  danger  and  sent  a  servant  to  the 
basement  with  a  light,  and  an  explosion  immediately  fol- 
lowed,2 or  where  gas  had  been  escaping,  and  a  tenant  was 
aware  that  the  gas  polluted  a  well,  but  after  the  water 
was  polluted  he  watered  his  horses  with  water  taken 
from  the  well,  he  cannot  recover  for  injuries  to  the  horses 
caused  by  the  water.3 

A  person  is  guilty  of  contributory  negligence  which 
will  bar  his  representative  of  a  right  to  recover  for  his 
death,  when  he  was  informed  that  gas  was  present  in 
large  quantities  in  certain  rooms  of  a  mine,  and  was  told 
not  to  enter  the  place,  and  the  person  injured  informed 
others  of  that  fact,  but  he  entered  the  place  and  was 
killed  by  an  explosion  of  the  gas  caused  by  a  light  being 
brought  by  him  in  contact  with  the  gas. 4  So  where  a  person 
who  had  knowledge  of  the  dangers  of  gas  brought  a  light 
close  to  an  oil  well  from  which  he  knew  gas  was  escaping, 
from  the  great  noise  it  made  as  well  as  the  odor  of  the 
gas,  he  is  guilty  of  contributory  negligence  and  cannot 
recover. 5  A  servant  whose  death  was  caused  by  inhaling 
gas  is  not  guilty  of  such  contributory  negligence  as  will 
bar  his  representative  of  a  right  to  recover  where  he  was 
directed  to  go  to  a  place  by  the  use  of  a  ladder  of  a  cer- 
tain length,  and  he  selected  one  much  shorter.  The  de- 
ceased was  held  bound  to  select  a  course  which  was  freest 
from  danger  if  there  was  any  difference  in  the  two  ways, 
his  negligence  was  to  be  determined  by  the  jury.6  So 
where  a  boy  was  playing  about  a  trench  in  which  gas 
mains  on  the  street  were  being  laid,  and  was  injured  by 
on  explosion  of  the  gas,  the  boy  was  held  not  guilty  of 
coutributory  negligence,  when  he  was  but  six  yedrs  old, 

1.  Oil  City  Gas  Co.  vs.  Robinson,  99  Pa.,  1. 

2.  Lanigan  vs.  New  York  Gas  Light  Co.,  71  N.  Y.,  29. 

3.  Sherman  vs.  Fall  River  Iron  Works,  2  Allen,  524. 

4.  Lehigh  Valley  Coal  Co.  vs.  Jones,  86  Pa.,  432. 

5.  McClafferty  vs.  Fisher  (Pa.),  1  Center  R.,  571. 

6.  Citizens  Gas  Light  &  Heating  Co.  vs.  O'Brien,  118  111.,  174. 


Negligence  of  Parents,  Tenants  and  Servants.        339 

and  there  was  no  evidence  that  he  was  warned  of  the 
danger  or  that  he  was  able  to  appreciate  the  danger.1 

SEC.  9.  CONTRIBUTORY  NEGLIGENCE,  PARENTS, 
TENANTS  AND  SERVANTS. — A  gas  company  is  not  liable 
for  injuries  to  an  infant  child  when  the  gas  escapes  in 
the  home  of  the  father  of  the  child  and  the  father  is 
guilty  of  negligence  after  the  escape  of  the  gas  where 
the  negligent  acts  of  the  father  contributed  to  the  injury. 
The  negligence  of  the  father  will  be  imputed  to  the 
child.8  So  where  a  husband  followed  a  servant  of  the 
gas  company  who  came  to  repair  a  leak  of  the  pipes  in 
the  cellar  and  both  carried  a  light,  the  negligence  of  the 
husband  will  bar  other  members  of  the  family  from  re- 
covering where  an  explosion  takes  place.8  The  negli- 
gence of  a  tenant  will  also  bar  the  owner  of  the  premises 
from  a  right  to  recover  when  the  tenant  fails  to  give  no- 
tice to  the  gas  company  of  the  presence  of  gas  in  the 
house  and  recklessly  brings  a  light  in  contact  with  the 
gas  and  causes  an  explosion.  The  tenant  in  such  a  case 
represents  the  owner  of  the  property.4  So  where  a  store 
was  left  in  charge  of  a  servant  and  the  gas  pipes  in  the 
street  broke  because  the  street  was  plowed  up  and  the 
pipes  were  thrown  out  of  place  and  the  gas  found  its 
way  into  the  store  and  the  servant  used  a  lighted  match 
to  find  the  leak,  the  negligence  of  the  servant  will  pre- 
clude the  owner  of  the  building  from  recovering  damages 
against  the  gas  company.  The  question  of  contributory 
negligence  is  usually  left  for  the  jury  to  determine,  but 
where  the  owner  alleged  in  his  complaint  and  the  jury  so 
finds  that  the  servant  was  negligent,  a  verdict  in  favor 
of  the  owner  of  the  building  cannot  stand. 5  A  gas  com- 
pany cannot  escape  liability  for  damages  caused  by  the 
explosion  of  gas  unless  the  act  of  the  servant  contributed 

1.  Rummele  vs.  Allegheny  Heating  Co.  (Pa.),  16  Atl.,  78. 

2.  Holly  vs.  Boston  Gas  Light  Co.,  8  Gray,  123;  69  Am.  Dec.,  233. 

3.  Vallee,  etc.,  vs.  The  New  City  Gas  Co.,  7  Am.  L.  R.,  767. 

4.  Bartlett  vs.  Boston  Gas  Light  Co.,  117  Mass.,  533. 

5.  Pine  Bluff  Water  &  Light  Co,  vs.  Schneider,  62  Ark.,  104;  34 

S.  W.,547;  33  L.  R.  A.,  366. 


340  Negligence  of  Fellow -Servants. 

to  the  injury.  Thus,  where  gas  had  been  escaping1  for  a 
long"  time  and  the  company  had  notice  that  gas  was  es- 
caping1 in  the  basement  of  a  building,  and  the  company 
assured  the  lessee  that  the  defect  would  be  cured  by  the 
replacing  of  the  old  meter  with  a  new  one  which  was 
done,  but  the  gas  continued  to  escape  thereafter  to  such 
an  extent  that  the  door  at  the  head  of  the  stairs  leading 
to  the  cellar  had  to  be  kept  closed  so  that  the  gas  would 
not  enter  the  rooms  above  the  cellar  and  a  servant  en- 
tered the  cellar  with  a  lighted  coal  oil  lamp  and  the 
lamp  was  suspended  from  the  ceiling1  of  the  cellar,  and 
the  servant  then  proceeded  to  light  a  gasoline  stove  and 
struck  several  matches  to  do  so  and  failing1  to  light  the 
stove,  she  emptied  the  gasoline  out  of  the  cup  and  threw 
it  on  a  heap  of  coal,  together  with  a  basin  of  water,  and 
in  the  meantime  another  servant  came  from  the  upper 
room  into  the  basement  and  left  the  door  at  the  head  of 
the  stairs  open  and  in  the  room  above  there  were  two 
gas  jets  burning,  not  far  from  the  head  of  the  stairs,  and 
the  servant  proceeded  to  light  the  gasoline  .stove  for  the 
second  time  but  failed,  and  some  two  minutes  elapsed 
after  she  attempted  to  light  the  stove  the  last  time  and 
ten  minutes  after  she  entered  the  cellar  with  the  lamp 
before  the  explosion  took  place  and  about  the  time  the 
explosion  happened  the  servant  observed  a  bluish  flame 
near  the  gas  jets  in  the  room  at  the  head  of  the  stairs, 
the  negligence  of  the  servant  is  a  question  of  fact  to  be 
determined  by  the  jury  and  it  cannot  be  said  as  a  matter 
of  law,  that  the  servant  was  guilty  of  negligence  because 
the  evidence  fails  to  show  that  the  bringing  of  the  lamp, 
or  striking  the  matches  caused  the  injury  when  the  lamp 
continued  to  burn  after  the  explosion  in  the  place  where 
it  was  suspended  by  the  servant  and  was  uninjured  and 
the  gas  jets  at  the  head  of  the  stairs  were  shattered.1 

SEC.  10.  NEGLIGENCE  OF  FELLOW  SERVANTS. — The 
owner  of  a  mine  will  be  relieved  from  liability  for  the 
death  of  a  servant  caused  by  an  explosion  of  gas  due  to 

1.  Consolidated  Gas  Co.  vs.  Crocker,  82  Md.,  113;  33  Atl.,  433;  31 
L.  R.  A.,  785. 


Negligence  of  Foremen.  341 

the  negligence  of  a  fellow- servant.1  A  gas  company  is 
liable  for  the  death  of  one  of  its  employees  where  its  su- 
perintendent told  the  employee  to  go  to  a  place  in  a  gas 
factory  above  the  apparatus  for  the  manufacture  of  the 
gas  to  remove  some  boards  which  were  strung  on  iron 
girders  and  the  servant  went  as  directed,  and  when  he 
reached  the  place  and  was  attempting  to  return  he  fell 
by  reason  of  being  overcome  with  gases  which  had  ac- 
cumulated at  that  point  and  received  injuries  from  which 
he  died.2  So  where  there  was  a  leak  in  a  natural  gas 
main  and  a  general  foreman  of  the  gas  company  was 
ordered  by  the  general  superintendent  to  repair  the  main 
and  he  proceeded  to  do  so  at  night,  and  to  do  this  a  num- 
ber of  persons  were  ordered  to  dig  a  trench  to  reach  the 
gas  main  and  the  trench  was  dug  about  seven  feet  deep 
and  the  trench  was  filled  with  gas  because  the  valves 
were  opened  and  while  one  of  the  servants  was  at  work 
in  the  trench  the  foreman  approached  the  place  with 
a  lighted  lantern  and  an  explosion  of  the  gas  followed 
and  injured  the  servant  at  work  in  the  trench,  the  gas 
company  was  held  liable  for  the  act  of  the  foreman  where 
the  foreman  had  a  right  to  give  orders  to  the  men  at 
work  and  hire  and  discharge  them.8  A  gas  company 
was  held  not  liable  for  injuries  to  an  employee  where  the 
cause  of  the  injury  was  the  negligence  of  a  fellow-servant 
in  striking  a  match  to  light  his  pipe  and  the  gas  immedi- 
ately exploded.  The  gas  had  escaped  through  the  end 
of  a  pipe  because  the  plug  had  blown  out,  but  the  master 
in  putting  up  the  gas  plant  used  the  best  material  in  its 
construction  and  hired  competent  and  skillful  workmen 
to  do  the  work  and  had  in  use  all  the  modern  appliances 
generally  used,  and  hired  a  person  of  great  experience 
to  operate  and  manage  the  plant.  The  injury  was  held 

1.  Lehigh  Valley  Coal  Co.  vs.  Jones,  86  Pa.,  432. 

2.  Citizens  Gas  Light  &  Heating  Co.,  15  111.  App.,  400;  Citizens 

Gas  Light  &  Heating  Co.  vs.  O'Brien,  19  111.  App.,  231; 
Citizens  Gas  Light  &  Heating  Co.  vs.  O'Brien,  118  111., 
174. 

3.  Indianapolis  Gas  Co.  vs.  Shumack,  23  Ind.  App.,  87;  54  N.  E., 

414. 


342  Negligence  of  Independent  Contractor. 

under  these  facts  to  result  not  from  the  escape  of  gas 
but  from  the  explosion  of  it  caused  by  a  fellow  servant.1 

SEC.  11.  NEGLIGENCE  OF  AN  INDEPENDENT  CON- 
TRACTOR.— A  gas  company  acting  under  a  charter  from 
the  state  was  granted  permission  by  the  city  to  lay  gas 
mains  on  the  streets  for  the  conveyance  of  gas,  and  the 
gas  company  made  a  contract  with  a  third  person  to  per- 
form all  the  work  and  furnish  the  material  for  the  con- 
struction of  the  gas  mains,  and  the  contractor  had  com- 
plete control  over  the  work  during  its  progress  and  until 
it  was  turned  over  to  the  gas  company,  but  the  gas  com- 
pany reserved  the  right  to  test  the  mains  during  the  pro- 
gress of  the  work.  An  employee  of  the  contractor  was 
injured  by  an  explosion  of  the  gas  because  the  mains 
were  not  securely  connected  and  the  gas  escaped  and 
came  in  contact  with  a  light.  The  gas  company  was 
held  liable,  even  though  the  contractor  had  complete 
control  over  the  gas  main  and  the  injury  was  caused  by 
the  contractor's  negligence.  As  far  as  third  persons' 
rights  are  involved,  the  contractor  will  be  regarded  as 
an  agent  of  the  gas  company  because  the  right  to  lay 
and  put  down  the  gas  mains  in  the  street  was  the  exer- 
cise of  a  right  under  its  charter  and  of  a  permission  from 
the  city,  and  the  gas  company  cannot  escape  liability 
for  its  acts  by  letting  the  contract  to  an  independent 
contractor.  The  court  said:  "Even  though  the  person 
who  causes  the  injury  is  a  contractor,  he  will  be  regarded 
as  the  servant  or  agent  of  the  corporation  for  which  he 
is  doing  the  work,  if  he  is  exercising  some  chartered 
privilege  or  power  of  such  corporation  with  its  assent 
which  he  could  not  have  exercised  independently  of  the 
charter  of  such  corporation.  In  other  words,  a  company 
seeking  and  accepting  a  special  charter  must  take  the 
responsibility  of  seeing  that  no  wrong  is  done  through 
its  charter  powers  by  persons  to  whom  it  has  permitted 
their  exercise."2 

1.  Allegheny  Heating  Co.vs.  Rohan,  118  Pa.  St.,  223;  11  Atl.,789. 

2.  Economic  Fuel  Gas  Co.  vs.  Myers,  168  111.,  139;  48  N.  E.,  66; 

Chicago  Economic  Fuel  Gas  Co.vs.  Myers,  64  111.  App.,139. 


When  the  Owner  is  Liable.  343 

The  courts  of  Pennsylvania  have  come  to  an  opposite 
conclusion  from  the  courts  of  Illinois.  A  case  arose  in 
that  state  where  a  natural  gas  company  was  granted  the 
right  to  put  down  mains  to  convey  natural  gas  through 
the  streets  of  a  city  and  the  company  let  the  work  to  a 
a  contractor,  and  before  the  work  was  completed  gas 
escaped  and  exploded  and  injured  a  person.  In  a  suit 
against  the  gas  company  by  the  person  injured  the  com- 
pany was  held  not  liable  for  the  negligence  of  the  con- 
tractor while  he  was  in  control  of  the  pipes.  In  that 
case  the  court  said:  "It  is  to  be  regretted  that  corpora- 
tions invested  with  the  right  of  appropriating  private 
property  and  entering  upon  the  public  highways  for  the 
purpose  of  laying  their  pipes  in  which  to  transport  and 
distribute  one  of  the  most  dangerous  natural  agencies  in 
existence  should  be  permitted  to  relieve  themselves  from 
the  duties  and  responsibilities  of  the  business  by  letting 
part  of  the  work  requiring  the  highest  degree  of  care  to 
an  independent  contractor,  but  the  law  was  so  settled." 
And  a  judgment  against  a  gas  company  in  favor  of  a 
person  injured  by  reason  of  the  negligence  of  the  inde- 
pendent contractor  was  set  aside. 1  The  doctrine,  as  laid 
down  in  the  Illinois  cases,  finds  support  in  the  courts  of 
England.  Thus  when  a  person  acquired  permission  from 
the  proper  authorities  to  dig  a  drain  in  a  public  highway 
and  such  person  hires  an  independent  contractor  to  do 
the  work,  the  person  who  receives  the  permission  is 
liable  for  the  negligence  of  the  independent  contractor.1 
The  same  rule  as  prevails  in  Illinois  and  England  is  fol- 
lowed by  the  courts  of  many  of  the  states.8  So  where  a 
telephone  company  was  given  the  right  by  the  local  au- 
thorities to  construct  a  telephone  line  in  the  street,  the 

1.  Chartiers  Valley  Gas.  (Jo.  vs.  Lynch,  118  Pa.,  362;  12  Atl., 

435;  Chartiers  Valley  Gas  Co.  vs.  Waters,  123  Pa.,  213;  16 
Atl.,  423. 

2.  Gray  vs.  Pullen,  5  Best  &  S.,  970;  34  L.  J.  Q.  B.,  265;  11  L. 

T.  U.  S.,  569;  13  Week.  R.,  257. 

3.  Woodman  vs.  Met.  Ry.,  149  Mass.,  335;  21  N.  E.,  482;  4  L.  R. 

A.,  213;  Deming  vs.  Terminal  Ry.,  63  N.  Y.  S.,  615;  49 
App.  Div.,  493;  Vasbeck  vs.  Kellog(Minn.),  80  N.  W.,957. 


344  Negligence  of  Third  Person. 

company  did  all  the  work  itself  excepting  that  it  con- 
tracted with  plumbers  to  solder  the  joints  of  the  wires, 
and  a  plumber  in  soldering  the  joints  used  a  benzoline 
lamp,  and  to  get  a  flare  he  dipped  the  lamp  in  the  molten 
solder  and  the  lamp,  being  out  of  order,  exploded  and 
injured  a  person  passing  on  the  street,  the  person  in- 
jured brought  an  action  against  the  telephone  company, 
the  company  was  held  liable,  because  it  was  carrying 
work  on  a  public  highway  and  it  was  its  duty  to  see 
that  it  was  not  negligently  done,  even  though  the  work 
was  performed  under  a  contract.  x 

SEC.  12.  NEGLIGENCE  OF  A  THIRD  PERSON. — A  gas 
company  entered  into  a  contract  with  the  owner  of  a 
house  whereby  the  gas  company  agreed  to  put  in  service 
pipes  from  its  mains  to  convey  the  gas  to  the  premises 
of  the  plaintiff  to  a  place  outside  the  meter,  located 
in  a  building  on  the  premises.  Gas  escaped  from  the 
pipe  put  down  by  the  gas  company  and  it  entered  the 
plaintiff's  shop.  At  the  time  the  gas  was  found  escaping 
a  servant  of  a  gas  fitter  whom  the  plaintiff  employed  to 
put  in  pipes  in  the  building,  was  at  work  in  an  adjoin- 
ing room  and  upon  learning  of  the  leak  endeavored  to 
find  it.  The  servant  entered  the  room  and  had  with 
him  a  lighted  candle,  and  as  soon  as  he  entered  the  room 
the  gas  exploded  and  damaged  the  building  and  stock 
of  goods  stored  therein.  In  an  action  against  the  gas 
company  for  a  breach  of  contract  for  failure  to  put  in  a 
proper  service  pipe,  the  jury  found  that  the  pipe  was  de- 
fective at  the  time  it  was  put  in  and  found  further  that 
the  servant  of  the  gas  fitter  was  also  negligent  for  bring- 
ing a  light  in  contact  with  the  gas.  The  court  held  that 
the  negligence  of  the  servant  of  the  gas  fitter  did  not  re- 
lieve the  gas  company  for  putting  in  a  defective  pipe, 
and  entered  a  judgment  against  the  gas  company.2  So 
where  the  pipes  of  an  oil  company  in  the  streets  are  in- 
jured by  the  acts  of  the  servants  of  the  city  and  naphtha 

1.  Holliday  vs.  National  Telephone  Co.,  68  L.  J.   Q.   B.,  1016 

(1899). 

2.  Burrows  vs.  March  Gas  &  Coke  Co.,  L.  R. ;  7  Exch.,  96. 


Liability  of  the  Owner.  345 

escaped  when  pumped  into  the  pipes  and  it  finds  its  way 
to  a  sewer  and  then  to  a  canal  which  flows  under  a  mill 
and  there  exploded  and  injured  a  person,  the  oil  company 
was  held  liable  for  the  injuries.  *  It  is  the  duty  of  a  gas 
company  engaged  in  transporting  gas  through  the  streets 
to  see  that  its  mains  are  in  good  repair  and  capable  of 
retaining  gas  within  them,  and  it  is  no  excuse  that  the 
mains  were  injured  by  third  persons. 2  A  gas  company 
is  also  liable  where  gas  escaped  from  pipes  which  the 
company  was  bound  to  keep  in  repair,  and  a  servant  of  a 
third  person  negligently  set  fire  to  the  gas  which  had 
accumulated  in  his  master's  building  and  the  fire  was 
communicated  to  the  building  of  the  third  person. 3 

1.  Lee  vs.  Vacuum  Oil  Co.,  54  Hun.,  162. 

2.  Smith  vs.  Boston  Gas  Light  Co.,  129  Mass.,  318;  Koelsch  vs. 

Philadelphia  Co.,  152  Pa., 355;  25  Atl.,  522;  18  L.  R.  A., 759. 

3.  Pine  Bluff  Water  &  Light  Co.  vs.  McCain,  62  Ark.,  118;  34  S. 

W.,  549. 


Injuries   Caused   by    Petroleum   and    Its 

Products. 


CHAPTER  XIX. 

SECTION  1.  SALE  OF  PETROLEUM  FOR  ILLUMINAT- 
ING PURPOSES — WHEN  DANGEROUS  FOR  SUCH  USE. — An 
action  may  be  maintained  against  distillers  and  refiners 
of  illuminating  oil  where  they  willfully  make  and  sell  oil 
for  lighting  purposes  when  they  know  that  the  oil  is 
highly  inflammable,  explosive  and  unsafe  and  unfit  for 
such  use.  So,  where  a  person  purchased  oil  from  a  retail 
dealer,  and  while  he  was  using  the  oil  the  lamp  exploded 
and  scattered  oil  all  over  him  and  set  his  clothes  on  fire, 
and  the  explosion  was  caused  by  the  low  fire  test  of  the 
oil,  the  manufacturer  of  the  oil  is  liable  for  his  death. 
The  manufacturer  is  liable,  although  the  oil  passed 
through  the  hands  of  several  dealers  before  it  reached 
the  consumer.  A  manufacturer  who  sells  his  product  as 
an  illuminating  oil  bearing  a  high  and  safe  fire  test, 
"when  in  fact  he  knows  that  its  fire  test  will  not  exceed 
64  or  65  degrees  Fahrenheit,  and  that  this  is  a  most  ex- 
plosive and  unsafe  oil  for  domestic  use,  can  plead  noth- 
ing in  defense  of  this  willful,  terrible  wrong  to  a  confiding 
community.  He  bears  within  him  a  heart  regardless  of 
social  duty,  evidencing  malice  in  a  legal  sense  in  a  high 
degree."  Although  the  oil  has  passed  through  several 
hands,  one  who  knowingly  makes  and  puts  upon  the  mar- 
ket for  domestic  use  such  death-dealing  fluid  cannot  claim 
exemption  from  liability  because  it  has  passed  through 
several  hands.1  In  an  action  against  manufacturers 
who  sold  naphtha  to  a  retail  dealer  for  illuminating  pur- 
poses, and  the  retail  dealer  sold  it  to  a  customer  who 
was  ignorant  of  its  dangers  and  was  injured  by  reason 
of  the  naphtha  exploding,  it  was  alleged:  "That  the 

1.  Elkins  vs.  McKean,  79  Pa.,  493. 


Injuries  to  Third  Persons.  347 

defendants  are  manufacturers  of  and  dealers  in  oils  and 
Chase  was  a  retailer  in  oils  and  fluids  to  be  burned  in 
a  lamp  for  illuminating1  purposes;  and  the  defendants, 
knowing  said  Chase  to  be  such  retailer,  sold  and  deliv- 
ered to  said  Chase  a  certain  quality,  to- wit:  One  barrel 
of  very  dangerous  and  explosive  liquid,  called  naphtha, 
for  the  purpose  of  being  retailed  and  to  be  resold  ~Eo~ 
be  burned  in  a  lamp  for  illuminating1  purposes,  it  being" 
the  purpose  and  the  defendants  knowing1  to  be  the  pur- 
pose of  the  said  Chase  to  retail  and  resell  the  same  to 
the  public  to  be  burned  in  a  lamp  for  illuminating"  pur- 
poses, the  defendants  knowing  the  said  liquid  to  be  ex- 
plosive and  dangerous  to  life  when  used;  and  the  said 
Chase,  not  knowing  the  same  to  be  dangerous  and  explo- 
sive, retailed  and  resold  a  certain  quantity,  to- wit:  one 
pint  of  the  same,  to  the  plaintiff,  to  be  burned  in  a  lamp 
for  illuminating  purposes;  and  while  the  plaintiff  was 
using  the  same  in  a  lamp  for  illuminating*  purposes,  and 
not  knowing  the  same  to  be  naphtha,  or  dangerous  and 
explosive,  the  same  ignited  and  exploded,"  and  the  plain- 
tiff was  injured  in  person  and  property,  etc.  These  alle- 
gations show  that  the  manufacturers  violated  a  duty 
toward  the  person  who  was  injured,  and  to  the  public, 
because  the  article  was  known  to  be  dangerous  and  ex- 
plosive, and  the  manufacturers  were  bound  to  contem- 
plate that  the  article  would  explode  and  ignite  and 
injure  a  person  who  was  not  informed  of  its  dangers  and 
must  therefore  respond  in  damages.1 

The  party  injured  in  such  case  must  show  by  the 
evidence  that  the  manufacturer  knew  that  the  article 
shipped  and  sold  for  illuminating  purposes  was  dan- 
geros. 2 

SEC.  2.  INJURIES  TO  A  SERVANT  OP  A  PURCHASER 
OF  GASOLINE. — An  oil  company  was  engaged  in  the  busi- 
ness of  refining  petroleum  and  one  of  the  products  result- 
ing from  the  refining  of  the  oil  was  a  substance  known 
as  gasoline.  The  company  had  a  general  agent  for  a 

1.  Wellington  vs.  Downer  Kerosene  Co.,  104  Mass.,  64. 

2.  Elkins  vs.  McKean,  79  Pa.,  493. 


348  Explosion  of  Gasoline. 

part  of  the  state  when  the  accident  complained  of  oc- 
curred, and  also  had  a  local  agent  in  the  town  where  the 
accident  occurred.  The  local  agent  sold  a  drum  contain- 
ing" 110  gallons  of  gasoline  to  a  man  and  his  wife  who 
were  engaged  in  the  steam  laundry  business,  and  they 
had  in  their  employ  a  foreman  and  a  boy  16  years  of  age 
who  acted  as  engineer.  The  drum  of  gasoline  sold  was 
87  degs.  gasoline  and  was  stored  in  a  shed  at  the  rear  end 
of  the  premises  and  about  thirty  feet  from  where  the  fur- 
naces of  the  laundry  were  located.  The  drum  in  question 
was  the  second  sold  to  the  parties,  and  when  the  first 
drum  was  unloaded  the  local  agent  told  the  parties  who 
operated  the  laundry  that  it  was  safe  to  store  the  gaso- 
line at  the  place  it  was  stored,  and  assisted  in  unloading 
it.  The  gasoline  was  drawn  in  ten  gallon  lots  about 
twice  a  day  and  was  taken  to  the  laundry  for  use  and 
was  used  to  heat  the  ironing  machinery  and  was  put  in  a 
generator  outside  the  house  to  operate  the  machinery.  It 
was  the  duty  of  the  boy  and  the  foreman  to  remove  the 
gasoline  from  the  drum  for  use,  and  when  they  were 
removing  some  of  it  in  the  month  of  July  the  gas  which 
had  generated  in  the  drum  escaped  and  permeated  the 
atmosphere  and  came  in  contact  with  the  fire  in  the  fur- 
nace and  exploded  and  the  boy  received  injuries  from 
which  he  died.  The  gasoline  sold  was  the  most  danger- 
ous and  explosive  and  not  in  general  use.  No  one  knew  of 
its  dangerous  qualities  excepting  the  oil  company  itself, 
and  there  was  no  notice  given  of  its  dangerous  qualities 
when  sold,  and  when  the  gasoline  was  sold  the  agent 
represented  that  there  was  no  danger  in  storing  the  gas- 
oline where  it  was,  and  the  purchaser  relied  upon  the 
statement  of  the  agent.  That  the  oil  company  was  neg- 
ligent in  employing  a  person  ignorant  of  the  dangerous 
qualities  of  the  gasoline,  and  in  not  warning  the  pur- 
chasers of  the  danger,  was  found  as  a  fact  by  the  court, 
and  also  the  boy  was  not  negligent  nor  did  he  assume  the 
risk  of  handling  the  gasoline.  The  matters  alleged  in 
the  petition  were  in  conformity  to  the  facts  as  above 
stated.  It  was  held  by  the  court: 


Common  Law  Liability  of  a  Vendor.  349 

First — The  gasoline  was  a  merchandise  which  was 
inherently  dangerous,  so  no  contractual  relations  need 
exist  between  the  person  injured  and  the  vendor  of  the 
article.  The  law  imposes  a  duty  on  the  vendor  of  the 
article  to  give  notice  of  the  dangerous  qualities  of  the 
article  sold,  and,  where  the  law  imposes  on  him  such 
a  duty,  he  is  liable  to  every  person  injured  whose  injury 
is  the  natural  and  probable  consequence  of  his  miscon- 
duct. As  the  defendant  knew  of  its  danger  and  its  agent 
did  not,  nor  did  it  inform  the  agent  or  the  purchaser, 
consequently  the  oil  company  was  liable  for  the  death  of 
the  boy. 

Second — The  local  agent  had  a  right  to  make  the 
representations  that  the  gasoline  could  be  stored  with 
safety  at  the  place  it  was  when  the  agent  had  general 
authority  to  make  sales  in  the  town  where  it  was  sold,  as 
it  comes  within  his  apparent  authority  and  is  binding  on 
the  company,  although  such  authority  was  not  given  by 
the  company. 

Third — The  oil  company  was  not  entitled  to  show  by 
a  general  agent  that  it  was  the  custom  not  to  make  any 
representations  as  to  the  storage  and  use  of  the  gasoline 
when  there  is  evidence  that  the  agent  in  this  particular 
instance  did  make  such  representations  and  the  pur- 
chaser was  not  aware  of  the  custom.  Nor  would  such  a 
custom  be  binding,  because  the  common  law  imposes  it 
as  a  duty  on  the  vendor  or  person  who  may  handle  it  to 
notify  a  vendee  of  its  dangerous  qualities. 

Fourth — The  proximate  cause  of  the  injury  was  the 
failure  of  the  oil  company  to  give  notice  to  the  purchaser 
of  the  dangerous  qualities  of  87  degs.  gasoline  and  em- 
ploying an  agent  ignorant  of  its  dangerous  qualities. 
The  fact  that  the  heat  from  the  laundry  may  have  gene- 
rated gas  would  not  make  the  negligence  of  the  oil  com- 
pany remote,  because  the  oil  was  stored  where  it  was 
directed  to  be  stored  by  the  agent  and  the  agent  induced 
the  purchaser  to  make  the  purchase  by  representing  that 
it  was  safe  and  the  agent  knew  the  use  to  be  made  of  it, 


350  When  Dangers  Must  Be  Made  Known. 

and  the  oil  company  shipped  the  gasoline  directly  to  the 
purchaser  and  must  have  known  the  use  to  be  made  of  it. 

Fifth — The  vendor  of  the  gasoline  could  not  escape 
liability  by  employing"  an  agent  who  was  ignorant  of  its 
dangers  in  making  the  sale  of  the  gasoline.1 

Under  the  Iowa  code,  which  provided,  "no  gasoline 
shall  be  sold,  given  away  or  delivered  to  any  person  in 
this  state  until  the  package,  cask,  barrel  or  vessel  con- 
taining the  same  has  been  marked  gasoline, "  a  dealer  in 
gasoline  was  held  liable  to  a  minor  daughter  of  the  pur- 
chaser when  the  jug  which  contained  the  gasoline  was 
not  marked  as  the  statute  provided.  The  statute  was 
construed  to  be  enacted  for  the  protection  of  all  per- 
sons in  the  state,  and  the  label  was  required  to  warn 
them  of  the  substance  they  were  handling  as  its  use  re- 
quires extreme  care,  so  the  failure  of  the  vendor  to  brand 
the  article  as  gasoline  was  negligence  per  se.  The  girl 
who  was  injured  took  the  gasoline  from  a  jug  which 
had  been  used  for  kerosene  and  had  no  knowledge  that 
it  was  gasoline  and  put  a  small  quantity  of  it  in  a  stove 
to  light  a  fire,  and  when  she  lit  the  gasoline  it  exploded 
and  set  fire  to  her  clothes.  The  girl  was  not  barred  from 
a  right  to  recover,  although  her  father  knew  the  jug 
contained  gasoline  and  did  not  inform  her  of  it,  as  the 
negligence  of  the  father,  who  was  the  purchaser,  will  not 
be  imputed  to  the  child.2 

SEC.  3.  DAMAGES  RESULTING  TO  A  VENDEE  FROM 
THE  NEGLIGENT  MANNER  IN  THE  USE  OP  A  CANDLE  BY  A 
SERVANT  OF  THE  VENDOR  IN  HANDLING  OIL. — A  vendor 
of  kerosene  was  requested  by  the  vendee  to  deliver  a  cer- 
tain quantity  of  oil  at  his  retail  store.  The  vendor  sent  his 
servant  to  make  the  delivery  at  the  store.  The  tank  into 
which  the  oil  was  to  be  put  was  in  the  basement  of  the  store 
and  a  pipe  extended  from  the  tank  to  and  above  the  floor, 
and  the  pipe  thus  extending  from  the  tank  was  connected 
with  a  pan  into  which  the  oil  was  poured  to  fill  the  tank. 

1.  Waters-Pierce  Oil  Co.  vs.  Davis,  Tex.  Cir.  App.;  60  S.  W.,523. 

2.  Jones  vs.  Welden  (la.),  87  N.  W.,  408. 


Negligence  of  a  Servant  of  a  Vendor  of  Oil.  351 

The  place  where  the  pan  was  located  was  dark,  and  the 
servant  of  the  oil  company  asked  a  clerk  of  the  vendee  for 
a  candle  and  also  a  match.  The  vendee  was  absent  at  the 
time  from  the  store,  the  clerk  furnished  a  candle,  without 
a  candlestick,  and  told  the  servant  where  he  could  get  a 
match.  The  servant  lit  the  candle  and  placed  it  upon 
some  bundles  of  kindling  wood  and  attempted  to  fasten 
the  candle  to  the  wood  with  tallow,  which  had  melted, 
and  placed  it  about  a  foot  from  the  oil  pan. 

The  servant  proceeded  to  carry  in  the  oil  from  a  tank 
wagon  on  the  street,  and  had  made  three  trips  and  was 
making  the  fourth  when  he  discovered  that  part  of  the 
store  where  the  candle  was  placed  and  where  the  pan  on 
which  the  oil  was  poured  was  all  in  flames,  and  in  a  few 
moments  there  was  an  explosion  and  the  front  glass  in 
the  store  was  blown  out  and  the  store  building  and  its  con- 
tents were  damaged  by  the  fire.  No  claim  was  made  by 
either  party  that  a  lighted  candle,  if  properly  placed  and 
fastened,  could  not  be  used  with  safety  or  that  it  was  care- 
lessness to  use  a  naked  candle  to  light  the  place  to  pour 
oil  in  the  pan.  The  plaintiff  or  his  servant  was  not  guilty 
of  contributory  negligence  if  the  light  he  furnished  could 
be  used  with  safety,  and  the  plaintiff  was  not  guilty  of 
any  contributory  negligence  if  the  servant  of  the  vendor 
of  the  oil  was  acting  for  the  vendor  at  the  time  he  ad- 
justed the  candle  on  the  wood.  The  negligence  of  the 
vendor's  agent  in  using  the  candle  as  he  did  was  a  ques- 
tion of  fact  to  be  determined  by  the  jury.1 

SEC.  4.  INJURIES  TO  SERVANTS  CAUSED  BY  DEFEC- 
TIVE APPLIANCES. — An  oil  refining  company  is  liable 
for  injuries  sustained  by  a  servant  of  the  company  when 
the  injury  was  caused  by  an  explosion  of  a  defective  still 
in  the  refinery  of  an  oil  refining  company.  The  company 
is  liable  although  the  stills  were  built  by  an  independent 
contractor  and  placed  in  the  refinery  of  the  oil  company 
where  the  president  of  the  oil  company  furnished  plans 
for  the  construction  of  the  oil  tanks.  The  court  stated 

1.  Dore  vs.  Babcock,  72  Conn.,  408;  44  Atl.,  736;  Aridisco  Oil  Co. 
vs.  Gilson,  63  Pa.  St.,  146. 


352  Defective  Appliances. 

the  rule  in  the  following  language :  "If  I  employ  a  well- 
known  and  reputable  machinist  to  construct  a  steam  en- 
gine and  it  blows  up  from  bad  materials  or  unskilled 
work,  I  am  not  responsible  for  any  injury  which  may  re- 
sult, whether  to  my  servant  or  to  a  third  person.  The 
rule  is  different  if  the  machine  is  made  according  to  my 
own  plan  or  if  I  interfere  and  give  directions  as  to  the 
manner  of  its  construction.  The  machinist  then  becomes 
my  servant  and  respondeat  superior  is  the  rule."1  A  dis- 
tiller of  crude  pretroleum  is  liable  for  the  death  of  an  em- 
ployee where  in  the  manufacture  of  crude  oil  large  quan- 
tities of  gas  were  generated,  and  when  the  stills  were  in 
operation  the  gas  escaped  into  a  running  room,  but  when 
not  in  operation  and  the  stills  were  empty  some  of  the 
gas  which  escaped  from  the  pipes  to  the  running  room 
would  find  its  way  back  into  the  stills  because  there 
were  no  stop  cocks  in  the  pipes  to  shut  off  the  gas,  and 
the  employee  went  into  the  still  to  repair  it,  and  it  was 
necessary  to  have  a  light,  and  when  the  light  came  in 
contact  with  the  gas  in  the  still  the  gas  exploded  and 
killed  the  employee.  The  master  was  negligent  in  not 
furnishing  safe  appliances  and  a  safe  place  for  the  em- 
ployee to  work.  The  defective  condition  of  the  appli- 
ances may  be  shown  by  a  conversation  which  a  former 
employee  had  with  the  superintendent  of  the  refinery.* 
But  an  oil  refining  company  was  held  not  liable  for  dam- 
ages to  a  servant  who  was  injured  by  gas  from  an  oil 
still  and  the  gas  came  in  contact  with  a  light  and  ex- 
ploded, when  the  servant  was  aware  of  the  danger  and 
had  been  at  the  same  work  for  over  a  year,  and  was  em- 
ployed to  do  the  work  which  he  was  doing  when  he  was 
injured,  and  he  had  no  need  of  the  light  near  the  still.3 
So  where  a  servant  was  employed  by  an  oil  refining  com- 
pany to  manufacture  varnish  by  a  process  which  was  not 
known  to  any  other  person  but  the  employee,  and  naph- 
tha was  used  in  the  manufacture  of  the  varnish,  and  the 
grounds  of  recovery  were  that  the  appliances  and  struc- 

1.  Aridisco  Oil  Co.  vs.  Gilson,  63  Pa.  St.,  146. 

2.  Nicholas  vs.  Bush,  6  N.  Y.  Supp.,  601;  53  Hun.,  137. 

3.  Benfleld  vs.  Vacuum  Oil  Co.,  27  N.  Y.  Supp.,  16;  75  Hun., 204. 


Escape  of  Naphtha  from  Pipes.  353 

ture  for  the  manufacture  were  defective,  and  that  the 
place  where  the  work  was  done  was  unsafe  because  there 
was  a  furnace  close  to  the  place,  and  the  fumes  or  gases 
from  the  naphtha  would  reach  the  fire  and  explode,  as 
it  did  in  that  case,  and  the  defendant  oil  company  had 
notice  of  these  defects,  the  master  was  held  not  liable 
where  the  servant  designed  the  appliances  and  there 
were  doors  which  could  be  closed  so  that  the  gases  from 
the  naphtha  could  not  reach  the  fire  in  the  furnace, 
which  was  in  an  adjoining  room,  and  the  servant  had 
full  charge  of  the  work  and  was  skilled  in  the  art,  and 
the  defendant  was  owner  but  a  week  and  the  servant 
was  there  for  many  months  in  the  service  of  another  com- 
pany from  which  the  defendant  purchased  the  plant. * 

SEC.  5.  PERSONAL  INJURIES  RESULTING  FROM  THE 
ESCAPE  OF  NAPHTHA  FROM  THE  PIPES  OF  AN  OIL  RE- 
FINING COMPANY. — An  oil  refining  company  was  en- 
gaged in  refining  oils  from  crude  petroleum  and  one  of  the 
products  resulting  from  refining  the  oil  is  a  fluid  sub- 
stance called  "naphtha,"  which  at  a  low  temperature  of 
13  degs.  Fahr.  gives  off  a  gas  which  is  inflammable  and 
explosive,  the  explosive  power  being  estimated  at  140 
pounds  to  the  square  inch.  The  laws  of  the  state  au- 
thorized pipes  to  be  laid  for  the  conveyance  of  petroleum 
and  its  products,  and  in  pursuance  of  said  law  a  pipe 
line  was  laid  between  the  place  of  refining  the  oil  and  a 
gas  works  about  one  and  one  half  miles  distant.  The 
pipes  were  three  inch,  wrought  iron  and  were  at  one 
point  laid  in  the  streets  of  a  city  near  a  sewer.  The  gas 
company  consumed  about  30,000  gallons  of  naphtha  per 
month  and  the  naphtha  was  delivered  every  two  weeks. 
The  gas  company  had  a  tank  at  the  gas  works  to  hold 
the  naphtha  and  it  was  necessary  to  pump  the  naphtha 
from  the  refinery  to  the  gas  works  on  account  of  the 
grade.  A  pump  was  stationed  at  the  refinery  and  it 
would  take  about  four  hours  to  fill  the  tank  at  the  gas 
works  every  two  weeks.  In  the  meantime  when  no 
pumping  was  being  done,  some  naphtha  stood  in  the 

1.  Hank  vs.  Standard  Oil  Co.,  56  N.  Y.  Supp.,  273. 


354  Degree  of  Care  Required. 

pipes.  On  the  day  of  the  accident  two  of  the  servants 
of  the  refining-  company  were  directed  to  deliver  15,000 
gallons  of  naphtha  to  the  g^as  company;  one  of  the  serv- 
ants was  to  operate  the  pump  at  the  refinery  and  the 
other  was  to  go  to  the  receiving1  tank  at  the  gas  works  to 
measure  the  tank  and  open  the  stop  cocks  to  permit  the 
naphtha  to  flow  into  the  tank.  A  precise  time  was  agreed 
upon  between  the  servants  as  to  when  the  naphtha 
would  commence  to  be  pumped.  The  stop  cocks  were 
opened  and  the  pumps  commenced  to  work  at  the  time 
agreed  upon  and  the  servant  at  the  receiving  tank  re- 
mained there  for  two  hours  and  over  and  no  naphtha 
came  through  the  pipes,  and  then  he  notified  an  officer 
of  the  gas  company,  who  in  turn  notified  the  parties  at 
the  pump  and  operations  ceased.  Two  weeks  previous 
to  this  time  the  city  was  constructing"  a  sewer  and  in 
blasting  some  rocks  in  the  street,  broke  the  pipe  of  the 
refining  company  which  conveyed  the  naphtha  to  the 
gas  works  and  the  naphtha  so  pumped  into  the  pipes 
escaped  and  found  its  way  into  a  sewer.  Several  explo- 
sions followed  the  escape  of  the  naphtha  and  in  one  of 
them  a  building  was  blown  up  and  a  person  was  killed, 
and  his  representatives  brought  an  action  against  the 
oil  company  for  damages.  The  pipes  were  of  the  best 
material  and  were  in  good  order  until  broken  by  the  city 
contractor.  The  court  laid  down  the  following  rules  as 
applicable  to  the  facts: 

First — In  view  of  the  danger  likely  to  arise  from  the 
use  of  broken  pipes  for  the  conveyance  of  naphtha,  a 
case  was  made  for  the  consideration  of  a  jury  under 
proper  instructions  as  to  the  law  applicable  to  the  facts. 
When  the  safety  of  human  life  is  in  question  a  very  high 
degree  of  care  is  required  in  conducting  a  lawful  busi- 
ness, and  an  escape  of  naphtha  from  its  pipes  along1 
any  part  of  the  line  of  pipe  would  be  dangerous  to  life 
and  property. 

Second— If  the  pipes  were  laid  under  a  rig-ht  granted 
by  the  state,  and  if  proper  material  was  used  and  laid  in 
a  proper  manner,  the  pipe  line  itself  was  not  a  nuisance 


Benzine  Used  to  Make  Paint.  355 

either  in  fact  or  in  law,  and  the  liability  of  the  oil  com- 
pany could  not  be  determined  on  the  ground  that  the  oil 
company  maintained  a  nuisance — in  fact  or  in  law. 

Third— It  was  a  question  to  be  considered  by  the 
jury  whether  the  oil  company  was  not  guilty  of  negligence 
in  not  ascertaining  that  the  pipes  were  in  good  order 
by  actual  inspection  or  by  other  means  before  the  naph- 
tha was  allowed  to  be  pumped  into  them.  Whether  or 
not  the  servants  were  guilty  of  negligence  in  not  ap- 
plying the  pumps  before  the  stop  cocks  were  open  at  the 
receiving  tanks  to  determine  whether  the  pipes  were  in 
good  order  or  not  was  for  the  jury. 

It  was  also  a  question  to  be  determined  whether  or 
not  the  servant  of  the  oil  company  was  not  negligent  in 
waiting  so  long  before  notice  was  sent  to  the  parties 
operating  the  pumps  that  no  naphtha  was  being  dis- 
charged at  the  receiving  tank. 

Fourth — The  defendant  was  not  entitled  to  an  in- 
struction that  if  the  pipes  were  broken  by  a  third  person 
and  the  defendant  had  no  notice  of  the  break,  and  that 
the  break  caused  the  escape  of  the  naphtha,  where  it  was 
admitted  that  a  third  person  broke  the  pipe,  and  the  de- 
fendant had  no  notice  and  the  action  was  prosecuted  on 
other  grounds.1 

SEC.  6.  INJURIES  TO  SERVANTS  IN  THE  USE  OP 
PAINT  OP  WHICH  BENZINE  is  AN  INGREDIENT. — A  master 
is  not  liable  for  the  injuries  received  by  a  servant  who 
went  into  a  water  tank  about  twelve  feet  deep  and  ten 
feet  in  diameter  to  paint  the  tank,  and  the  paint  fur- 
nished by  the  master  was  in  common  use  for  about 
twelve  years,  and  had  been  used  by  the  person  injured, 
and  the  master  did  not  know  that  the  paint  was  danger- 
ous. The  paint  which  caused  the  injury  was  supposed 
to  contain  a  quantity  of  benzine,  and  when  the  cans  were 
opened  and  the  paint  applied  to  the  sides  of  the  tank 
the  paint  gave  off  a  quantity  of  gas  which  came  in  contact 
with  the  light  used  by  the  painters  and  exploded.  The 

1.  Lee  vs.  Vacuum  Oil  Co.,  7  N.  Y.  Supp.,  426;  54  Hun.,  156. 


356  Duty  of  the  Master  Toward  Servants. 

master  is  only  required  to  provide  material  and  imple- 
ments as  are  ordinarily  used  by  persons  in  the  same  busi- 
ness, and  is  not  required  to  secure  the  best  known 
material  or  subject  the  material  to  a  chemical  analysis 
to  discover  some  remote  or  possible  hazard  incurred  by 
their  use,  and,  as  the  paint  was  in  common  use  for  the 
purpose  for  which  it  was  used,  the  master  was  not 
liable.1  The  same  rule  was  laid  down  in  Mass,  in  a  like 
case. 8 

SEC.  7.  INJURIES  TO  SERVANT  FROM  HANDLING  PE- 
TROLEUM.— An  oil  company,  engaged  in  the  business  of 
handling,  transporting  and  vending  oil,  turpentine,  gas- 
oline, kerosene  and  other  products  of  petroelum,  is  liable 
for  the  death  of  a  boy  who  was  engaged  as  a  servant  of 
the  oil  company  and  was  inexperienced  in  the  dangers  con- 
nected with  the  business  and  the  master  failed  to  instruct 
him  as  to  the  danger.  Thus,  where  the  oil  comgany  had 
three  rooms  leased  in  a  certain  town,  and  one  of  the  rooms 
was  below  and  two  above,  and  the  windows  in  the  rooms 
above  were  some  distance  from  the  ground,  and  the 
door  had  a  defective  lock,  and  could  not  be  opened  at 
times,  and  the  boy  did  most  of  the  work  outside,  and 
after  working  outside  for  some  time  he  was  instructed 
by  the  superintendent  in  charge  to  go  to  the  office  and 
get  warm,  and  the  boy's  clothing  was  saturated  with  the 
oils  which  he  had  been  handling,  and  the  boy  went  to 
the  office  as  directed,  and  in  the  office  was  a  hot  stove, 
and  the  boy's  clothing  caught  fire,  and  he  could  not  go 
out  through  the  door  as  the  lock  would  not  work,  and  he 
jumped  through  a  window  in  the  room  above  and  received 
injuries  from  which  he  died,  the  oil  company  was  held  to 
be  liable  for  the  death  of  the  boy,  because  it  was  the  duty 
of  the  master  to  warn  the  boy  of  the  danger,  on  account 
of  the  condition  of  his  clothes.8 

SEC.  8.  DAMAGES  RESULTING  PROM  THE  ESCAPE  OF 
OIL. — An  oil  refining  company  is  not  liable  for  damages 

1.  Allison  Mfct.  Co.  vs.  McCormick,  118  Pa.,  519;  12  Atl.,  273. 

2.  Lyons  vs.  Boston  T.  &  L.  Co.,  163  Mass.,  143;  39  N.  E.,  800. 

3.  Wallace  vs.  Standard  Oil  Co.,  66  Fed.  R.,  260. 


Presumption  of  Negligence.  357 

where  an  explosion  takes  place  in  the  refinery  and  the 
oil  escapes  and  flows  down  along*  a  pipe  line  and  sets 
fire  to  a  lighter  in  a  harbor  which  had  been  used  for  the 
conveyance  of  oil,  and  the  lighter  exploded  and  set  fire 
to  a  vessel  moored  in  the  harbor,  and  the  evidence  does 
not  show  that  the  oil  company  was  negligent  in  the 
operation  of  its  works  and  the  explosion  at  the  refinery 
was  caused  by  such  negligence.  The  bare  fact  that 
there  was  an  explosion  at  the  factory  will  not  raise  a 
presumption  that  the  oil  company  was  negligent,  though 
the  oil  company  does  not  account  for  the  explosion.  The 
reason  given  for  such  a  rule  is:  "That  there  is  a  general 
disposition  among  men  to  preserve  their  property  and 
escape  liability,  and  ordinarily  their  motives  will  secure 
that  degree  of  care  and  caution  which  the  safety  of  the 
public  demands;  and,  hence  the  presumption  of  duty 
performed  which  in  cases  of  fire  will  protect  him  until 
the  facts  be  proven  from  which  negligence  can  be  in- 
ferred."1 Other  courts  have  held,  however,  that  there  is 
a  presumption  of  negligence  where  an  explosion  occurs 
and  this  presumption  must  be  overcome  by  evidence. 
The  rule  is  based  upon  the  principle  that  accidents  and 
injuries  "which  do  not  ordinarily  happen  when  reason- 
able and  proper  care  is  taken,  to  avoid  them,  afford  a 
presumption  of  negligence  and  place  upon  the  defendant 
the  burden  of  proof  that  ordinary  and  reasonable  care 
was  taken  to  avoid  the  accident;  and  also  upon  the  prin- 
ciple of  evidence  that  he  who  has  peculiarly  within  his 
power  the  means  of  producing  evidence  of  reasonable 
care  shall  be  required  to  produce  it."2 

The  presumption  of  negligence  is  overcome  when 
there  is  evidence  that  due  care  was  used  and  that  proper 
rules  were  laid  down  to  govern  the  workman  and  that 
only  a  few  lights  were  used  and  they  were  far  away  and 
below  the  rims  of  the  tanks,  and  that  no  smoking  was 

1.  Cosulick  vs.   Standard  Oil  Co.,  122  N.   Y.,  118;   25  N.  E., 

259. 

2.  Ware  vs.  Davis  Oil  Co.,  61  Fed.  R.,  631;  Judson  vs.  Giant 

Powder  Co.,  107  Cal.,  549;  29  L.  R.  A.,  718. 


358  Rescue  of  One  in  Danger. 

allowed  about  the  factory  and  only  a  part  of  the  oil 
stills  had  been  in  use  on  the  day  of  the  accident.1 

SEC.  9.  DEATH  OR  INJURY  RESULTING  FROM  GO- 
ING TO  THE  ASSISTANCE  OF  ONE  IN  DANGER. — An  oil 
company  guilty  of  no  negligence  is  not  liable  for  the 
death  of  a  person  who  lost  his  life  in  attempting  to 
rescue  a  servant  who  was  in  danger  of  losing  his  life  be- 
cause of  the  presence  of  gas  in  an  oil  tank  into  which 
the  servant  went  in  the  performance  of  his  service  for 
the  oil  company,  when  the  oil  company  was  guilty  of  no 
negligence  toward  the  servant  or  the  person  who  lost 
his  life.2  The  rule  in  such  case  is:  The  party  against 
whom  the  action  is  brought  must  be  guilty  of  negligence 
toward  the  person  who  was  in  danger  or  to  the  person 
who  went  to  the  person  who  was  in  danger  in  order 
to  hold  the  party  claimed  to  be  negligent  liable.8  A 
city,  however,  is  liable  for  the  death  of  a  boy  where 
the  city  dug  a  trench  in  the  street  and  left  it  open 
for  many  days  and  the  men  who  had  worked  in  the 
trench  had  to  abandon  it  because  large  quantities  of 
deadly  gases  accumulated  in  the  trench  and  there  were 
cross  pieces  in  the  trench  which  extend  from  side  to 
side  and  thus  made  almost  a  perfect  ladder  from  the  top 
to  the  bottom,  and  no  watchman  was  placed  to  guard 
the  ditch  or  warn  people  of  the  danger  of  the  gases 
below  and  no  warning  sign  was  posted,  and  the  place 
where  the  trench  was  dug  was  in  a  populous  part  of  the 
city  and  near  a  church  and  a  public  school,  and  boys  and 
men  were  accustomed  to  congregate  near  the  public 
school  because  there  was  a  vacant  lot  connected  with 
the  school  and  the  lot  was  used  as  a  play  ground,  and 
some  boys  had  been  engaged  in  playing  ball  and  the  ball 
had  rolled  into  the  trench,  and  the  boy  who  lost  his  life 
went  to  get  the  ball  for  other  boys,  but  when  he  got  to  the 

1.  Ware  vs.  Davis  Oil  Co.,  61  Fed.  R.,  631. 

2.  Jackson  vs.  Standard  Oil  Co.,  98  Ga.,  497;  26  S.  E.,  60. 

3.  Donahue  vs.  Wabash,  St.  L.  &  P.  Ry.,  83  Mo.,  560;  Gramlich 

vs.  Winst,  86  Pa.,  74;  Pennsylvania  Co.  vs.  Langendorf ,  48 
Ohio  St.,  316;  28  N.  E.,  172;  13  L.  R.  A.,  190. 


Business  Negligently  Conducted.  359 

place  of  descent  another  boy  had  gone  into  the  trench, 
and  as  he  was  partially  up  he  was  overcome  with  gas 
and  fell  to  the  bottom  and  the  other  boy  who  lost  his 
life  went  to  his  rescue.1  The  city  was  held  to  be  negli- 
gent and  was  bound  for  the  consequences  of  its  neglect, 
though  these  consequences  were  not  and  could  not  by 
any  ordinary  prudence  have  been  anticipated.  So  where 
the  negligence  of  the  party  against  whom  the  action  is 
brought  is  established,  negligence  would  not  be  charged 
to  the  boy  who  lost  his  life  in  attempting  to  rescue  the 
one  in  peril,  and  although  the  acts  of  the  boy  may  seem 
to  be  reckless  and  rash,  yet  these  acts  must  be  consid- 
ered with  the  circumstances  that  the  boy  had  no  time  to 
think  but  must  act  at  once,  and  that  others  had  gone  to 
the  bottom  of  the  trench  before  and  returned  safely  and 
the  boy  whom  he  went  to  rescue  returned  after  recover- 
ing from  the  effects  of  the  gas,  and  above  all  he  went  to 
the  rescue  of  a  human  being  who  was  in  great  and  immi- 
nent danger  and  consequently  should  not  be  charged 
with  errors  of  judgment  resulting  from  the  excitement 
and  conclusion  of  the  moment.2  The  doctrine  laid  down 
in  the  case  above  is  almost  universally  recognized.3 

SEC.  10.  NEGLIGENCE  FROM  THE  NEGLIGENT  MAN- 
NER OF  CONDUCTING  THE  BUSINESS  OF  HANDLING  OIL. — 
An  oil  company  engaged  in  the  business  of  storing  and 
vending  of  petroleum  is  bound  to  keep  its  premises  in 
such  a  condition  that  it  will  not  endanger  the  property 
of  others  by  reason  of  fires  starting  on  its  premises  on 
account  of  the  inflammable  condition  of  the  premises  and 

1.  Corbin  vs.  Philadelphia,  195  Pa.,  461;45  Atl.,  1070;  49  L.  R.  A., 

715. 

2.  Corbin  vs.  Philadelphia,  195  Pa.,  461;  45  Atl.,  1075;  49  L.  R.A., 

715. 

3.  Eckert  vs.  Long  Island  Ry.,  43  N.  Y.,  503;  Spooner  vs.  Del., 

L.  &  W.  Ry.,  115  N.  Y.,  22;  21  N.  E.,  696;  Gibney  vs. 
State,  137  N.  Y.,  1;  33  N.  E.,  142;  19  L.  R.  A.,  365;  Pey- 
ton vs.  Tex.  &  Pac.  Ry.,  41  L.  A.  Am.,  861;  6  So.  690; 
Maryland  Steel  Co.  vs.  Mooney,  88  Md.,  482;  42  Atl.,  60; 
42  L.  R.  A.,  842 ;  Pennsylvania  Co.  vs.  Langendorf,  48  Ohio 
St.,  316;  28  N.  E.,  172;  13  L.  R.  A.,  190. 


360  Sale  of  an  Article  Not  Ordered. 

surroundings.  Thus,  when  an  oil  company  permitted  the 
floors  and  walls  of  a  building"  in  which  oil  was  kept  to 
become  saturated  and  allowed  the  ground  about  the 
building  in  which  oil  was  kept  to  become  in  the  same 
condition  and  also  allowed  large  quantities  of  jackets 
used  on  cans  and  barrels  to  accumulate  about  the  prem- 
ises, the  oil  company  was  held  guilty  of  negligence  and 
was  liable  where  the  premises  were  set  on  fire  by  a  pass- 
ing train  and  the  fire  was  communicated  to  a  building 
which  was  destroyed.  The  fact  that  the  house  was  built 
and  used  by  the  oil  company  and  several  fires  had  oc- 
curred before  the  house  of  the  plaintiff  was  built  near 
by  did  not  affect  the  plaintiff's  rights  as  he  assumed  no 
risks  by  building  where  he  did.1  A  person  would  as- 
sume no  risk  even  though  the  person  was  the  vendor  of 
the  land  and  had  notice  of  the  manner  in  which  the 
defendant  conducted  its  business  was  dangerous.1 

In  an  action  to  recover  damages  caused  by  fire  being 
communicated  from  a  building  in  which  the  products  of 
crude  petroleum  were  stored  because  of  the  negligent 
manner  of  keeping  the  premises  and  storing  the  products, 
evidence  of  the  custom  and  usage  of  well  appointed  and 
managed  companies  engaged  in  the  same  business  is 
competent  evidence  on  the  question  of  care  and  diligence 
required  in  the  proper  care  and  conduct  of  the  business, 
but  evidence  of  the  custom  and  usage  of  one  particular 
concern  engaged  in  the  same  business  is  not  competent, 
nor  is  a  witness  competent  to  testify  as  to  the  custom 
and  usage  of  such  concerns  where  he  is  acquainted  only 
with  the  management  of  one  concern. 3 

SEC.  11.  SALE  OF  A  DIFFERENT  FLUID  THAN  THE  ONE 
ORDERED  BY  THE  PURCHASER — DECEPTION  IN  BRANDING 
THE  FLUID. — A  vendee  ordered  a  barrel  of  puroline  from 

1.  Waters-Pierce  Oil  Co.  vs.  King,  6  Tex.  Cir.  App.,  73;  24  S.  W., 

700. 

2.  Judson  vs.  Giant  Powder  Co.,  107  Col.,  549;  40  Pac.,  1020;  29 

L.  R.  A.,  718. 

3.  Standard  Oil  Co.  vs.  Swan,  89  Tenn.,  334;  14  S.  W.,  928;  15  S. 

W.,1068;  10  L.  R.  A.,  366. 


Injuries  to  a  Servant  in  the  Use  of  Petroleum  as  a  Fuel.  861 

a  vendor  of  oils  and  the  vendor,  instead  of  giving  the 
vendee  the  article  ordered,  filled  the  order  by  giving  the 
vendee  gasoline  at  74  degrees  gravity  and  branded  the 
package  as  "puroline."  Puroline  and  gasoline  were  both 
sold  for  illuminating  purposes  and  both  are  the  products 
of  petroleum,  and  both  are  gas  bearing  fluids.  Evidence 
of  chemists  and  experts  and  dealers  in  the  fluids  showed 
that  there  was  scarcely  any  more  danger  in  the  use  of 
gasoline  at  74  degrees  than  in  the  use  of  puroline,  and  if 
there  was  any  difference  in  the  danger  it  was  so  slight 
that  it  could  not  be  measured.  All  purchasers  were 
inlormed  through  circulars  that  74  degrees  gasoline  was 
the  same  as  puroline,  and  that  both  were  non-explosive, 
but  both  produced  a  gas  which  was  inflammable  and 
would  ignite  when  brought  near  a  flame.  And  it  appeared 
that  an  agent  of  the  purchaser  who  ordered  the  package 
bought  a  package  of  the  dealer  previous  to  this  one  and 
the  order  was  filled  in  this  way  and  a  bill  sent  for  the 
price  of  the  article  which  was  stated  to  be  74  degrees 
gasoline.  The  plaintiff's  mill  was  burned  and  he  claimed 
the  damages  were  the  result  of  the  substitution.  The 
dealer  was  held  not  liable  for  the  substitution  of  gaso- 
line for  puroline  under  the  circumstances  as  the  differ- 
ence existed  only  in  name  and  not  in  the  goods,  and  this 
is  especially  true  when  the  package  was  marked  "Ex- 
plosive and  Dangerous"  by  an  inspector  of  such  fluids, 
as  was  required  by  a  state  statute.1 

So  where  the  servants  of  the  owner  of  the  premises 
drew  the  gasoline  from  the  package  at  night  and  used  a 
lantern  as  a  light  and  the  dealer  in  the  oils  warned  the 
purchasers  not  to  draw  the  fluid  at  night  and  the  gases 
which  escaped  from  the  package  caught  fire  from  the 
lantern  and  burned  the  building,  the  vendor  of  the  fluid 
is  not  liable.2 

SEC.  12.  INJURIES  TO  SERVANT  IN  THE  USE  OF  PE- 
TROLEUM AS  A  FUEL. — A  user  of  crude  petroleum  as  a 

1.  Socala  vs.  Chess  Corley  Co.,  39  La.,  344;  1  So.,  824. 

2.  Socala  vs.  Chess  Corley  Co.,  39  La.,  344;  1  So.,  824. 


362  Question  for  a  Jury. 

fuel  is  liable  for  injuries  received  by  a  servant  of  the 
user  when  the  master  was  negligent  in  not  having-  a  suf- 
ficient number  of  stop  cocks  in  the  pipes,  so  that  the  oil 
could  be  shut  off  in  case  of  danger,  and  the  pipes  had 
been  changed  without  notice  to  the  servant,  and  the  num- 
ber of  stop-cocks  in  the  pipes  were  less  in  the  new  pipes 
than  had  been  in  the  old  pipes.  Thus,  where  oil  was  used 
for  burning  brick,  and  the  servant  had  been  employed  to 
assist  in  the  work,  and  there  was  a  small  pipe  which 
entered  the  kiln,  and  where  the  burner  was  placed  there 
was  a  stop  cock,  and  the  burner  and  small  pipe  was  con- 
nected with  a  rubber  tube,  which  often  bursted,  and  there 
was  also  a  valve  in  the  feed  pipe  and  also  a  valve  in  the 
tank,  and  the  latter  valve  could  be  turned  only  by  the 
use  of  a  wrench,  and  the  new  pipe  put  in  had  no  stop 
cock  in  the  feed  pipe,  and  the  rubber  tube  bursted,  and 
the  oil  escaped  and  enveloped  the  stop  cock  in  the  small 
pipe  with  fire,  and  the  stop  cock  could  not  be  used,  and 
the  servant  went  to  where  the  stop  cock  was  in  the  old 
pipe  and  found  the  new  pipe  had  none,  and  then  he  called 
the  assistance  of  servants  to  shut  off  the  valve  in  the 
tank,  and  a  servant  went  upon  the  tank,  and  the  ser- 
vant who  was  at  the  place  where  the  pipe  was  connected 
with  the  tank  below,  was  assured  repeatedly  by  other 
servants  that  the  valve  in  the  tank  was  adjusted,  and 
the  servant  below  unscrewed  the  pipe  so  that  the  tank 
of  oil  could  be  removed,  so  as  to  prevent  an  explosion 
and  the  spread  of  fire,  and  the  valve  in  this  tank  was  not 
adjusted,  and  when  the  pipe  was  unscrewed  the  oil  flowed 
upon  him  and  caught  fire  and  he  was  badly  burned,  the 
court  held  that:  First,  the  question  of  negligence  as  to 
the  absence  of  the  stop  cock  was  a  question  of  fact  to  be 
determined  by  the  jury,  and  that  a  legal  duty  vested 
upon  the  master  to  notify  the  servant  as  to  the  change 
made  in  the  pipes. 

Second:  Whether  the  servant  who  undertook  to  turn 
the  valve  was  negligent  or  not,  the  fact  that  he  was  a 
fellow-servant  and  negligent  would  not  bar  him  from  a 
right  to  recover.  The  injury  was  caused  by  reason  of  the 


Escape  of  Oil  Into  Sewers.  363 

master  in  not  furnishing  proper  appliances  and  giving  no- 
tice to  the  servant  of  the  change  in  appliances,  combined 
with  the  negligence  of  the  fellow-servant  to  cause  the 
injury.  The  negligence  of  the  fellow-servant  was  not  a 
new  and  efficient  cause  of  the  injury,  but  was  an  incident 
of  the  original  negligence  set  in  motion  by  the  master, 
and  these  are  questions  of  fact  to  be  determined  byar- 
jury  properly  instructed  by  the  court. 

Third:  Whether  the  servant  was  negligent  in  going 
under  the  tank  to  uncouple  the  pipe  so  the  car  could  be 
moved,  under  the  circumstances  was  a  question  of  fact 
for  the  jury.  The  servant  was  not  guilty  of  negligence 
in  going  under  the  tank  to  uncouple  the  pipe,  and  in  so 
doing  left  a  place  of  safety  when  there  was  no  apparent 
danger  at  the  time  he  went  to  the  place,  but  an  unfore- 
seen danger  arose  thereafter.1  So  where  a  person  was 
employed  to  put  on  a  tin  roof  on  part  of  a  building,  and 
other  men  employed  to  put  on  a  shingle  roof  on  other 
parts  of  the  same  building,  and  the  person  employed  to 
put  on  the  tin  roof  used  a  gasoline  fire  pot,  and  as  the 
fire  was  blowing  hard  he  put  up  some  shingles  on  both 
sides  to  prevent  the  wind  from  blowing  the  flame,  but 
the  shingles  caught  fire  and  he  replaced  the  shingles 
with  two  pieces  of  tin,  and  the  tin  became  hot  and  re- 
flected the  heat  of  the  fire  pot  on  the  gasoline  tank  which 
supplied  the  fire  pot,  and  the  tank  exploded  and  injured 
an  employee  who  was  putting  on  the  shingles,  and  the 
employee  who  was  putting  on  the  tin  roof  knew  that 
gasoline  was  explosive  when  heat  was  applied  to  it,  the 
employee  was  held  to  be  negligent,  and  he  and  the  mas- 
ter were  held  jointly  liable  for  the  injuries  which  the 
servant  sustained. a 

SEC.  13.  DAMAGES  RESULTING  FROM  THE  ESCAPE 
OF  OIL  INTO  SEWERS. — A  party  who  has  stored  upon  his 
premises  petroleum  is  liable  for  damages,  when  the  pe- 
troleum was  permitted  to  escape  to  the  soil  from  the  tank 

1.  Pullman  Palace  Car  Co.  vs.   Laack,  143  111.,  242;  32  N.  E., 

285;  18  L.  R.  A.,  215. 

2.  Evans  vs.  Hoggatt,  9  Kan.  App.,  540;  59  Pac.,  381. 


364  Explosion  of  Gas  Formed  from  Petroleum. 

in  which  it  was  stored  and  the  petroleum  then  percolated 
through  the  soil  and  found  its  way  to  a  sewer  built  by  the 
city  and  gases  were  formed  from  the  oil  in  the  sewer  and 
found  their  way  to  where  a  bakery  was  being-  conducted 
and  the  gases  contaminated  the  atmosphere  and  injured 
the  products  manufactured  by  the  baker.  The  fact  that 
the  sewer  conveyed  the  oil  and  gases  to  the  premises  of 
the  baker,  and  they  would  not  have  reached  the  prem- 
ises but  for  the  sewer,  will  not  make  the  negligence  of 
the  owner  of  the  oil  remote,  because  the  sewer  was  a 
condition  rather  than  a  cause,  and  was  not  an  independent 
cause  of  the  injury,  so  as  to  make  it  the  proximate  cause 
of  the  injury.1  But  a  company  which  had  stored  on  its 
premises  oil  is  not  liable  for  damages  caused  by  an  explo- 
sion of  gases  from  oil  which  had  been  turned  into  a  sewer 
by  the  chief  of  the  fire  department  of  the  city,  althoug-h 
the  oil  escaped  from  the  premises  of  the  oil  company,  but 
oil  escaped  because  a  fire  broke  out  on  the  premises  of 
the  oil  company  and  escaped  during"  the  progress  of  the 
fire,  and  the  evidence  did  not  show  the  oil  company  was 
negligent  in  causing  the  fire,  and  that  the  oil  would  not 
find  its  way  into  the  sewer  in  which  it  was  at  the  time 
of  the  explosion,  but  the  chief  caused  a  trench  to  be  cut 
so  that  the  oil  would  flow  into  the  sewer,  and  no  person 
or  officer  of  the  company  gave  the  men  any  direction  as 
to  the  digging  of  the  trench  to  turn  the  oil  into  the  sewer, 
nor  was  the  trench  dug  on  the  premises  of  the  oil  com- 
pany.1 A  city,  however,  is  liable  for  the  death  of  a  per- 
son which  was  caused  by  an  explosion  of  gases  which 
arose  from  crude  petroleum  turned  into  the  sewer  which 
had  escaped  from  the  premises  of  a  person  during  a  fire. 
The  courts  will  take  judicial  notice  that  inflammable 
gases  arise  from  crude  petroleum,  and  the  circumstances 
that  crude  oil  was  turned  into  a  sewer  and  formed  gases 
which  exploded  and  killed  a  person  are  evidence  of  some 

1.  Brady  vs.  Detroit  Steel  &  Spring  Co.,  102  Mich.,  277;  60  N. 

W.,687;  26  L.  R.  A.,  175. 

2.  Fuchs  vs.  St.  Louis,  133  Mo.,  168;  31  S.  W.,  115;  34  L.  R.  A., 

118. 


Liability  of  an  Oil  Inspector.  365 

neglect  on  the  part  of  the  city  in  caring-  for  the  sewer 
and  should  go  to  the  jury. l 

SEC.  14.  LIABILITY  OF  OIL  INSPECTOR  FOR  FALSELY 
BRANDING  OIL  AS  SAFE  FOR  ILLUMINATING  PURPOSES. — 
A  statute  provided  for  an  oil  inspector  of  all  illuminating 
oil  made  from  petroleum  and  the  inspector  was  to  pro- 
vide himself  with  instruments  for  making  the  test  and 
an  oil  tester  which  was  approved  by  the  board  of  health 
was  to  be  used  and  the  inspector  and  his  deputies  did 
provide  themselves  with  testers  recommended  and  ap- 
proved by  the  board  of  health.  All  oils  which  were  fit 
for  illuminating  purposes  were  to  be  branded:  "Approved; 

flash  test degrees"  and  those  unfit  for  illuminating 

purposes  were  to  be  branded:  "Rejected  for  illuminating 

purposes;  flash  test degrees,"  the  blanks  were  to  be 

filled  with  the  degrees.  All  oil  which  would  emit  a  com- 
bustible vapor  at  a  temperature  of  105  degrees  standard 
Fahr.  closed  test  were  to  be  rejected  for  illuminating 
purposes.  The  inspector  and  his  deputies  were  re- 
quired to  make  bonds  for  the  due  performance  of  their 
duties.  The  statute  also  provided:  "If  any  inspector 
or  deputy  shall  falsely  brand  or  mark  any  barrel  *  *  * 
or  be  guilty  of  any  fraud,  deceit,  misconduct  or  culpa- 
ble negligence  in  the  discharge  of  his  official  duties  he 
shall  be  deemed  guilty  of  a  misdemeanor  and  upon  a  con- 
viction thereof  shall  be  fined  not  to  exceed  $100  or  im- 
prisoned not  to  exceed  thirty  days  and  be  liable  to  the 
party  injured  for  all  damages  resulting  therefrom."  A 
certain  quantity  of  oil  was  inspected  by  the  deputy  oil 
inspector  and  the  barrels  branded:  "Approved;  flash 
test,  106  degrees."  A  certain  quantity  of  the  oil  was 
sold  to  a  merchant  and  again  sold  by  him  to  a  consumer, 
who  was  injured  by  an  explosion  of  the  oil  while  using 
it  in  a  lamp  and  the  person  brought  an  action  against 
the  oil  inspector  and  the  deputy  for  injuries  and  dam- 
ages resulting  from  the  explosion.  The  party  injured 
alleged  that  the  oil  was  not  equal  to  the  standard  re- 

1.  Fuchs  vs.  St.  Louie,  133  Mo.,  168;  31  S.  W.,  115;  34  L.  R.  A., 
118. 


366  Oil  Inspectors  Duties  are  Statutory. 

quired  by  law  and  the  fire  and  explosion  were  caused 
thereby  and  the  brand  placed  on  the  barrels  was  false 
and  fraudulent.  It  was  held  by  the  court: 

First — The  liability  of  the  inspector  and  his  deputies 
and  their  bondsmen  were  wholly  statutory  because  "the 
duties  of  the  inspector  and  his  deputies  are  prescribed 
by  statute  and  by  rules  and  regulations  adopted  by  vir- 
tue of  the  statute;  and  the  obligation  of  their  sureties  is 
ascertained  from  the  statute,  the  rules  and  regulations 
adopted  pursuant  thereto,  and  the  conditions  of  the 
bonds  they  have  signed." 

Second — The  statute  made  the  inspector  and  his 
deputies  liable  both  criminally  and  civilly  and  was  there- 
fore a  penal  statute  and  must  be  construed  strictly.  To 
commit  a  crime  one  must  have  a  guilty  intent  as  a  gen- 
eral rule  and  the  word  "false"  or  "falsely"  as  used  in 
the  statute  means  more  than  inaccurate,  erroneous  or 
faulty.  The  word  includes  not  only  the  element  of  error 
but  also  an  intentional  wrong  and  the  inspector  or  his 
deputies  were  not  liable  without  intentional  wrong  or 
culpable  negligence  on  their  part.  Where  the  inspection 
was  made  according  to  law  and  the  rules  prescribed  by 
the  state  board  of  health  and  the  oil  flashed  at  a  tem- 
perature of  106  degrees  closed  test  and  the  test  was 
made  with  a  thermometer  recommended  and  furnished 
by  the  board  the  inspector  or  his  deputies  are  not  liable 
although  the  closed  test  may  be  below  105  degrees. 

Third — When  the  oil  inspector  or  his  deputies  used 
instruments  which  had  been  approved  and  furnished  by 
the  state  board  of  health  and  the  inspector  or  his  depu- 
ties had  no  reason  to  believe  that  the  instrument  or  in- 
struments were  not  in  good  order  and  if  the  instrument 
was  used  with  due  care  as  the  statute  and  rules  of  the 
board  provided  and  the  oil  was  correctly  branded  as 
shown  by  the  test,  the  inspector  or  his  deputies  were  not 
liable  for  any  error  though  the  inspector  or  his  deputies 
act  in  a  ministerial  and  not  in  a  judicial  capacity  in  test- 
ing the  oil. 


Shooting  Oil  and  Gas  Wells.  367 

Fourth — An  oil  inspector  or  his  deputy  is  not  liable 
if  when  oil  was  branded  by  him  it  came  up  to  the  stand- 
ard required  by  statute  when  it  was  in  fact  below  the 
standard  required  by  statute  if  an  explosion  of  the  lamp 
in  which  the  oil  was  used  was  not  caused  by  the  low 
grade  of  oil  but  was  the  result  of  other  causes.  * 

SEC.  15.  INJURIES  AND  DAMAGES  TO  THIRD  PER^ 
SONS  FROM  SHOOTING  OIL  AND  GAS  WELLS — INJUNCTION 
AGAINST  SHOOTING  A  WELL. — A  company  was  engaged 
in  the  manufacture  of  explosives  and  in  cleaning  out  oil 
and  gas  wells  by  shooting1  explosives  therein.  The  ex- 
plosives used  were  highly  dangerous.  The  company  was 
hired  by  the  owner  to  supply  the  explosives  and  set 
them  in  place  in  the  well  and  also  the  owner  claimed 
that  the  explosives  were  to  be  fired  off  by  the  company. 
The  explosives  were  set  in  place  to  be  exploded  in  the 
well  by  the  company  and  the  company  also  supplied  an 
instrument  called  a  "go-devil"  to  be  dropped  into  the 
well  to  fire  off  the  explosives.  The  company  contended 
that  the  owner  of  the  well  was  in  control  of  it  and 
that  the  owner  was  instructed  by  an  ag*ent  of  the  com- 
pany not  to  let  the  "go-devil"  into  the  well  until  the 
next  morning,  but  that  the  owner  let  the  "g^o-devil"  into 
the  well  at  7:30  p.m.  It  appeared  that  the  well  was  sit- 
uated in  a  village  and  that  the  fires  and  lights  were  burn- 
ing at  that  time  in  the  evening  because  it  was  in  the 
month  of  September  and  was  dark  and  cold.  It  was 
well  known  that  wThen  a  well  was  shot  that  larg'e  quan. 
tities  of  g'as  would  escape  from  the  well  and  would  settle 
near  the  ground  under  certain  conditions  of  the  atmos- 
phere and  would  explode  if  it  came  in  contact  with  a 
flame.  It  was  also  in  evidence  that  a  certain  engine  was 
near  the  well  and  was  fired  up  at  the  time.  When  the 
well  was  shot  the  gas  did  escape  and  exploded  and  en- 
wrapped a  boy  in  the  flames  and  he  received  permanent 
injuries  therefrom. 

A  person  who  had  followed  the  business  of  shooting- 
wells  for  many  years,  and  was  acquainted  with  the  du- 

1.  Hatcher  vs.  Dunn,  102  la.,  411;  71  N.  W.,  343;   66  N.  W.,  905. 


368  Injuries  to  Third  Persons. 

ties  of  one  called  to  shoot  a  well,  and  knew  the  prevail- 
ing custom  in  that  regard,  may  be  asked  the  question 
that,  if  the  shooter  of  a  well  brings  100  quarts  of  nitro- 
glycerine to  a  well,  and  the  nitro-glycerine  had  been 
placed  in  shells  and  lowered  into  the  well,  and  the  well 
logged  in,  and  the  derrick  boarded  up  except  the  open- 
ing facing  toward  the  engine  and  belt  house,  and  the 
well  was  a  distance  of  from  80  to  200  feet  from  residences 
and  buildings  of  a  village  and  surrounding  the  well,  and 
the  village  contained  about  1,200  people,  and  the  condi- 
tion of  the  atmosphere  was  such  that  the  gas  liberated 
from  the  well  would  settle  near  the  earth:  Would  the 
hour  of  7:30  p.m.  on  September  7  in  any  year,  when 
darkness  had  intervened  so  that  fires  and  lights  are  lit 
in  residences  and  business  houses,  be  in  his  opinion 
a  proper  time  to  shoot  such  well;  that  is  to  say,  ex- 
plode such  torpedo  therein?"  To  which  question  the  wit- 
ness answered:  "It  is  not  a  proper  hour."  The  fact 
called  for  by  such  a  question  was  not  an  ultimate  fact  in 
issue  and  was  not  a  subject  of  common  knowledge  or  one 
that  the  jury  could  as  well  judge  as  the  witness.  So  the 
question  and  answer  were  proper  because  the  expert 
knew  all  the  dangers  incident  to  the  explosion  at  such  a 
place  and  hour  with  the  surroundings,  and  the  jury  may 
be  aided  in  forming  an  opinion  by  one  familiar  with  the 
danger,  otherwise  the  jury  may  not  be  able  to  draw  a 
correct  conclusion  from  the  proof  of  the  facts  from  which 
the  conclusion  was  drawn  by  the  expert.  The  torpedo 
company  was  not  released  from  liability  because  after 
placing  the  torpedo  in  the  well  the  owner  told  the  ser- 
vant of  the  torpedo  company  that  he  would  drop  the 
"go-devil"  to  explode  the  torpedo  and  the  owner  did  ex- 
plode the  torpedo.  In  such  a  case  the  question  of  negli- 
gence depended  upon  the  entire  transaction  and  was  a 
question  of  fact  for  the  jury. 

The  torpedo  company  was  liable  for  the  injuries  sus- 
tained if  the  torpedo  company  was  hired  to  shoot  the  well, 
although  the  owner  of  the  well  dropped  the  "go-devil" 
into  the  well  because  the  services  of  the  company  in  shoot- 


Injunction  to  Prevent  Shooting  of  Oil  or  Gas  Wells.     369 

ing"  the  well  did  not  end  until  the  torpedo  was  exploded 
and  the  act  of  the  owner  was  the  act  of  the  company,  and 
the  company  was  resposible  for  selecting"  a  wrong  hour  or 
for  delaying1  the  shooting"  until  darkness  set  in.  The 
company  would  not  be  liable  if  the  duties  of  the  company 
ended  by  putting-  the  torpedo  into  the  well  and  the  owner 
had  full  control  over  the  well  and  power  to  decide  when 
the  well  should  be  shot. 

If  the  owner  and  the  torpedo  company  were  both 
engaged  jointly  in  shooting  the  well,  and  both  are  made 
defendants,  one  defendant  cannot  shift  the  liability  ex- 
clusively on  the  other  when  a  third  person  was  injured 
from  the  negligent  manner  in  doing-  the  work,  for  either 
or  both  of  them  are  liable.1 

A  gas  company  which  bored  a  well  in  a  thickly  popu- 
lated city,  and  hauled  nitro-glycerme  to  the  well  to  be 
used  in  shooting-  the  well  to  increase  the  flow  of  gas,  will 
be  enjoined  from  carrying  its  work  into  execution  where 
the  lives  of  the  people  of  the  city  would  be  jeopardized 
by  such  an  act.  The  company  must  be  content  with  the 
natural  flow  of  gas  when  it  selected  a  populated  city  as 
a  place  to  bore  a  gas  well.2 

1.  Ohio  &  Indiana  Torpedo  Co.  vs.  Fishburn,  61  Ohio,  608;  56  N. 

E.,  457. 

2.  Peoples  Gas  Co.  vs.  Tyner,  131  Ind.,  277;  31  N.  E.,  59;  16  L. 

R.  A.,  443. 


TRANSPORTATION  OF  OIL. 


CHAPTER  XX. 

SECTION  1.  INJURIES  TO  THE  GOODS  OF  ANOTHER 
SHIPPER. — An  oil  refining  company  may  recover  the  value 
of  a  certain  quantity  of  refined  oil  which  was  turned  over 
to  a  common  carrier  to  be  shipped  to  a  certain  point,  and 
the  oil  so  shipped  was  burned,  because,  on  the  same  train, 
there  was  a  car  of  crude  petroleum  and  the  car  caught 
fire  and  the  part  of  the  train  on  which  the  refined  oil  was 
stored  could  not  be  separated  from  the  car  which  con- 
tained the  crude  petroleum,  and  which  was  on  fire  be- 
cause the  cars  could  not  be  uncoupled  on  account  of  a 
defect  in  the  coupling's.  The  duty  of  a  common  carrier 
is  to  provide  a  vehicle  in  all  respects  adapted  to  the  pur- 
poses of  carriage,  and  so  constructed  to  encounter  the 
ordinary  risks  of  transportation,  and  where  merchandise 
is  shipped  on  the  same  train  with  highly  combustable 
materials  it  is  the  duty  of  the  carrier  to  take  every  avail- 
able precaution  against  the  communication  and  spread 
of  fire  if  it  should  occur.1 

SEC.  2.  THE  FACTS  AS  STATED  BY  THE  COURT  IN 
RENDERING  ITS  DECISION  AND  THE  RULING  OF  THE 
COURT  IN  THE  CASE  OF  GOODLANDER  MILL,  Co.  vs. 
STANDARD  OIL  Co.  24  U.  S.  APP.,  7;  27  L.  R.  A.,  583. 
— The  facts,  as  found  by  the  court,  were  as  follows: 
"That  in  November,  1889,  the  Standard  Oil  Company 
shipped  a  tank  car  of  crude  petroleum  containing  6000 
gals,  from  Lima,  Ohio,  to  the  Fort  Scott  Gas  Co.,  of 
Fort  Scott,  Kansas.  The  tank  car  had  a  discharge  pipe 
in  the  bottom  and  about  the  center  of  the  tank  some  four 
inches  in  diameter  and  projecting  about  six  inches  below 
the  bottom.  The  projection  was  threaded  to  receive  a 

1.  Empire  Transp.  Co.  vs.  Wamsutta  Oil  Co.,  63  Pa.  St.,  14. 


Facts  in  the  Goodlander  Case.  371 

heavy  cap  screw.  Within  the  tank  the  discharge  pipe  is 
fitted  with  a  heavy  valve  to  prevent  the  escape  of  oil. 
The  valve  rests  upon  a  shoulder  in  the  upper  part  of  the 
discharge  pipe.  Below  the  shoulder  there  are  four  con- 
caves made  in  the  valve,  to  permit  the  flow  of  oil  upon 
raising  the  valve.  An  inflexible  iron  rod  is  attached  to 
the  valve,  extending  through  the  dome  on  top  of  tfie 
tank  and  projecting  a  foot  or  more  above  it.  Within  the 
tank  at  the  top  there  is  a  coiled  wire  spring  arranged  to 
hold  the  rod  down  and  keep  the  rod  in  position,  clos- 
ing the  outlet.  To  discharge  the  contents  of  the  car 
through  the  lower  discharge  pipe  the  cap  is  unscrewed 
and  the  pipe  coupling  attached.  The  valve,  by  means 
of  the  rod  is  then  lifted  and  the  oil  permitted  to  flow 
through  the  outlet  into  the  pipe  and  conducted  to  the 
reservoir  provided  for  its  reception.  The  tank  car  ar- 
rived at  Fort  Scott  on  the  17th  day  of  November  and 
was  received  by  the  consignee  on  the  next  day.  The  gas 
company  caused  the  car  to  be  removed  from  the  yard  of 
the  railroad  company,  where  it  was  delivered  and  to  be 
placed  on  the  switch  track  of  another  company  located 
in  a  street  a  half  mile  away  between  the  property  of  the 
gas  company  and  the  steam  flour  mill  of  the  plaintiff  in 
error.  This  was  done  for  the  purpose  of  piping  the  pe- 
troleum contained  in  the  tank  into  the  reservoir  of  the 
gas  company,  located  beyond  the  mill  and  upon  the  far- 
ther side  of  an  intercepting  street.  The  railroad  track 
upon  which  the  tank  car  stood  was  three  feet  distant 
from  the  furnace  room  of  the  mill,  the  latter  being  three 
feet  below  the  level  of  the  railroad  track  at  that  point. 
The  car  was  placed  directly  opposite  the  furnace  room 
of  the  mill.  On  the  afternoon  of  November  the  18th  and 
before  or  at  the  time  of  the  removal  of  the  car  on  that 
day,  it  was  observed  by  the  engineer  of  the  switch  en- 
gine that  the  tank  was  leaking,  the  oil  dripping  at  the 
outlet  of  the  car  and  forming  a  pool  on  the  ground.  On 
the  morning  of  the  19th  of  November  two  servants  of  the 
gas  company  undertook  to  discharge  the  oil  into  the  res- 
ervoir of  the  gas  company,  through  a  pipe  laid  from  the 


372  Facts  in  the  Goodlander  Case. 

reservoir  to  the  tank  car.  One  of  them  adjusted  the  rod 
at  the  top  of  the  car  and  reported  to  the  other  that  it 
had  been  pushed  down,  indicating"  the  valve  to  be  in 
proper  position.  The  other  went  under  the  car  with  a 
wrench  to  remove  the  cap  and  attach  the  pipe  leading"  to 
the  reservoir.  He  observed  that  the  cap  was  loose  and 
removed  it  with  his  hand;  and  it  is  stated  in  the  brief  of 
the  counsel  of  the  plaintiff  in  error — without  reference 
to  the  record  for  verification  of  the  statement — that  the 
man  observed  as  he  went  under  the  car  for  the  purpose 
of  removing1  the  cap  and  attaching  the  coupling1,  that  the 
oil  was  leaking1  some,  but  he  did  not  deem  that  fact  of 
moment,  supposing  that  the  valve  was  in  proper  posi- 
tion, and  would  prevent  the  discharge  of  petroleum  until 
it  was  raised.  Upon  removing  the  cap,  the  oil  flowed 
out  before  the  coupling  could  be  attached  and  despite 
the  efforts  made  to  prevent  it  and  before  the  car  could 
be  removed  from  its  position,  the  oil  flowed  down  the 
descent,  through  an  open  window,  into  the  boiler  room 
and  also  upon  some  hot  ashes,  located  at  the  rear  of 
the  engine  room  and  boiler  house,  and  some  eight  feet 
distant  from  the  car  and  caught  fire,  whereby  the  mill 
and  its  contents  were  destroyed  and  property  of  the 
value  of  $107,000  consumed.  After  the  fire  and  upon  ex- 
amination of  the  tank,  it  was  discovered  that  it  contained 
no  valve;  that  it  was  removed,  but  how,  or  when,  it  is 
not  disclosed  by  the  evidence,  but  presumably  before  the 
tank  car  was  filled  with  oil  for  shipment.  The  evidence 
established  that  crude  petroleum  will  give  off  a  vapor  or 
gas  which  will  flash  at  a  temperature  of  90  degrees,  ig- 
niting by  contact  with  fire,  and  explosive  upon  its  igni- 
tion; that  is  in  common  use  for  fuel  purposes;  that  it  is 
as  volatile  as  turpentine.  The  action  against  the  Stand- 
ard Oil  Company  by  the  mill  owner  is  predicated  upon 
negligence  in  omitting  to  have  a  proper  valve  in  the  out- 
let of  the  tank.  At  the  trial  of  the  cause  and  upon  a 
conclusion  of  the  evidence  for  the  plaintiff,  the  court  di- 
rected the  jury  to  find  a  verdict  for  the  defendant."  The 
above  were  the  facts  on  which  the  court  instructed  the 
jury  to  find  the  defendant  not  guilty. 


Duty  of  the  Carrier  to  Furnish  a  Safe.  373 

SEC.  3.  DUTY  TO  FURNISH  A  SAFE  VEHICLE  CON- 
TINUES ONLY  WHILE  THE  OIL  is  IN  THE  COURSE  OF 
TRANSPORTATION — PETROLEUM  NOT  A  DANGEROUS 
AGENCY— CONTINUING  NEGLIGENCE. — In  discussing-  the 
duties  and  liability  of  the  company  toward  the  public 
the  court  said:  "We  are  thus  brought  to  the  question 
whether  crude  petroleum  may  properly  be  classified-as- 
a  'dangerous  agency  within' the  meaning- of  the  rule. 
It  is  an  extensive  article  of  commerce,  transported  by 
rail  to  all  parts  of  the  land,  shipped  by  steamers  and 
sail  vessels  to  all  parts  of  the  world.  It  is  innocuous  of 
itself.  It  is  dangerous  only  when  in  considerable  quan- 
tity it  is  broug-ht  in  contact  with  fire.  It  is  in  general  use 
for  fuel  and  other  purposes.  It  is  no  more  volatile  than 
turpentine,  no  more  explosive  than  gas;  does  not  neces- 
sarily, in  handling,  involve  immediate  danger  to  any  one. 
It  is  not  a  dangerous  agency  in  itself,  but  becomes  such 
by  subjection  to  a  high  degree  of  heat  or  from  actual 
contact  with  fire.  The  shipment  of  such  an  article  of 
commerce  casts  upon  the  shipper  a  certain  duty  to  the 
public — that  of  providing  a  suitable  vehicle  for  the  pe- 
troleum in  all  respects  adapted  to  the  purpose  of  carri- 
age and  able  to  encounter  the  usual  risks  of  transporta- 
tion reasonably  to  be  anticipated.  We  think  that  to  be 
the  true  limit  of  the  shipper's  duty,  and  that  duty  as  it 
appears  to  us  in  this  case  was  properly  discharged.  The 
petroleum  was  contained  in  a  tank  impervious  to  fire. 
The  shipment  reached  its  destination  in  safety.  The  case 
is  not  like  that  of  the  shipment  of  explosives,  the  char- 
acter of  the  shipment  being  concealed.  Here  the  contents 
of  the  tank  was  declared  by  the  peculiar  construction  of 
the  car.  The  properties  of  the  petroleum  were  known 
to  the  consignee  and  to  the  public  equally  with  the  de- 
fendant. They  are  matters  of  common  knowledge.  There 
was  here  no  disguise  and  no  concealment."  If  the  court 
in  the  above  quotation  laid  down  a  correct  rule  as  to  the 
duty  of  the  shipper  to  provide  a  safe  vehicle  so  that  the 
oil  would  not  be  exposed  to  dangers  of  ignition  while  in 
the  hands  of  the  carrier  for  transportation,  the  shipper 


374  Proximate  Cause  of  Injury. 

did  not  provide  a  safe  vehicle  because  the  statement  of 
facts  by  the  court  shows  that  the  oil  was  escaping-  from 
the  car  while  yet  in  -the  hands  of  the  carrier,  and  the 
court,  in  the  opinion,  said  that:  "The  company  (the  gas 
company)  was  chargeable  with  the  knowledge  *  *  * 
the  oil  was  leaking  from  the  discharge  pipe  and  this 
prior  to  the  removal  of  the  car  from  the  yard  of  the  car- 
rier." The  tank  continued  to  leak  after  it  passed  into 
the  hands  of  the  consignee  and  up  to  the  time  the  cap 
screw  was  removed,  so  the  danger  was  a  continuing  one 
and  the  negligence  of  the  oil  company  a  continuing  neg- 
ligence, and  all  that  the  gas  company  did  was  to  make 
the  oil  flow  in  a  greater  volume  or  increase  the  flow. 
Again,  what  was  to  be  gained  by  the  public  in  knowing 
the  properties  of  petroleum  when  the  public  or  the  mill 
company  had  no  control  over  the  tank  car? 

SEC.  4.  THE  ABSENCE  OF  THE  VALVE  NOT  THE 
PROXIMATE  CAUSE  OF  THE  DESTRUCTION  OF  THE  MILL. — 
The  shipper  was  held  not  bound  to  provide  a  valve  so 
that  the  contents  of  the  car  may  be  discharged  by  the 
ordinary  methods  as  far  as  third  persons  may  be  con- 
cerned, because  the  petroleum  was  not  in  or  of  itself 
"essentially  dangerous."  "The  omission  of  the  valve  did 
not  render  it  dangerous.  If  not  interfered  with,  the  omis- 
sion of  the  valve  had  no  tendency  whatever  to  produce 
the  injury  complained  of,"  said  the  court.  But  the  oil 
escaped  from  the  car  before  the  servants  of  the  gas  com- 
pany undertook  to  remove  the  oil  from  the  tank,  and  it 
escaped  while  yet  in  the  hands  of  the  carrier,  and  the 
statement  of  facts  by  the  court  contains  the  following: 
"Within  the  tank  the  discharge  pipe  is  fitted  with  a  heavy 
valve  to  prevent  the  escape  of  oil."  The  escape  of  the 
oil  had  a  tendency  to  imperil  property  generally  in  the 
city  of  Ft.  Scott  and  whatever  threatened  the  property 
generally  was  a  menace  to  this  particular  property  and 
this  took  place  before  the  car  left  the  yards  of  the  car- 
rier and  before  the  servants  of  the  gas  company  inter- 
fered with  the  car,  so  the  car  was  dangerous  to  the  pub- 
lic and  to  the  Goodlander  Mill  Co.  as  one  of  the  public 


Absence  of  a  Valve.  375 

because  the  car  leaked,  and  it  leaked  because  of  the  ab- 
sence of  the  valve  which  was  provided  "to  prevent  the 
escape  of  oil."  The  oil  itself  is  of  such  a  character  that 
if  not  confined  it  will  flow  upon  another's  premises  and 
do  damages.  So  the  person  who  provides  the  means  to 
confine  it  ought  to  be  held  liable  for  damages  because  of 
the  insufficiency  of  such  means.1 

The  court  said  further:  "The  petroleum  was  subject 
to  ignition  and  its  ignition  at  the  time  and  place  pro- 
duced the  injury.  That  was  caused  by  subjecting  it  to 
heat  and  fire."  Was  it  the  absence  of  the  valve  or  the 
removal  of  the  cap  screw  which  caused  the  injury?  The 
statement  of  facts  says:  "The  tank  car  had  a  discharge 
pipe  in  the  bottom  and  about  the  center  of  the  tank  some 
four  inches  in  diameter  and  projecting  about  four  inches 
below  the  bottom.  The  projection  was  threaded  to  re- 
ceive a  heavy  cap  screw.  To  discharge  the  contents  of 
the  car  through  the  lower  discharge  pipe,  the  cap  is  un- 
screwed and  the  pipe  coupling  attached.  The  valve  by 
means  of  a  rod,  is  then  lifted  and  the  oil  permitted  to 
flow  through  the  outlet  into  the  pipe  and  conducted 
through  the  pipe  to  the  reservoir  provided  for  its  recep- 
tion." Then  the  discharge  pipe  was  not  placed  on^the 
bottom  of  the  car  for  the  purpose  of  confining  the  oil  but 
for  the  purpose  of  having  a  hose  attached  so  that  the  oil 
may  be  conveyed  to  a  reservoir,  and  in  the  construction 
of  a  tank  it  was  not  intended  that  the  oil  should  be  be- 
low the  valve  in  the  discharge  pipe,  for  after  removing 
the  cap  screw  the  valve  had  to  be  lifted  to  permit  the  oil 
to  flow  through  the  opening.  If  the  valve  was  there,  no 
oil  would  be  below  the  valve  and  the  oil  would  not  escape 
as  it  did,  and  it  was  the  fault  of  the  shipper  that  it  was 
not  there  and  the  oil  escaped  into  the  discharge  pipe,  at 
least,  because  it  was  not  there.  Is  it  negligence  for  a 
bailee  of  a  chattel  to  use  it  as  it  was  bailed  to  be  used? 

1.  Swords  vs.  Edgor,  59  N.  Y.,  28;  Sternberg  vs.  Wilcox,  96 
Term.,  113;  Heaven  vs.  Fender,  L.  E.  11  Q.  B.  Div.,  506; 
Melchey  vs.  Methodist  Religious  Soc.,  125  Mass.,  487; 
Caughrty  vs.  Globe  Woodenware  Co.,  56  N.  Y.,  124. 


376  Duty  of  Bailors. 

The  gas  company  simply  used  the  discharge  pipe  as  it 
was  intended  to  be  used  when  it  was  bailed  to  it  and  if 
it  should  be  used  differently,  the  oil  company  gave  it  no 
notice.  The  defect  was  not  obvious  to  the  gas  company 
and  only  slight  leakage  was  observed  by  the  servants  of 
the  gas  company,  but  the  servants  of  the  Standard  Oil 
Company  knew  that  the  valve  was  absent  or  it  was  their 
duty  to  know  and  the  court  held  the  oil  company  to  be 
negligent  in  sending  out  a  car  in  that  condition.  The 
Standard  Oil  Company  was  a  dealer  in  petroleum  for 
profit  and  as  a  means  of  increasing  its  profits  and  pro- 
moting its  business,  it  had  provided  itself  with  tank  cars 
so  that  the  oil  could  be  conveyed  directly  in  its  own  cars 
to  the  purchaser,  and  the  defect  was  in  the  car  when  it 
was  turned  over  to  the  gas  company  and  the  defect  was 
obvious  when  the  tank  was  empty,  so  the  Standard  Oil 
Company  knew  of  the  defect  and  the  bailee  did  not.  If 
a  person  leases  his  real  estate  or  bails  his  personal 
property,  which  is  so  out  of  order  as  to  injure  third  per- 
sons the  lessor  or  bailor  is  liable.1  And  when  a  person 
leases  a  premises  for  a  particular  purpose  or  bails  per- 
sonal property  or  buys  it  for  a  particular  purpose  and 
the  property  is  unfit  for  that  purpose,  the  lessor  or  bailor 
is  liable  to  the  lessee  or  bailee  or  third  persons. 2  And  if 
such  lessor  or  bailor  is  liable  to  the  lessee  or  bailee  the 
lessee  or  bailee  cannot  be  said  to  be  guilty  of  contribu- 
tory negligence,  and  if  not  guilty  of  such  negligence  in 
reference  to  the  lessor  or  bailor,  how  can  the  lessor  or 
bailor  setup  such  negligence  to  defeat  a  recovery  against 
him  by  a  third  person.  In  all  these  cases  the  person  who 
was  injured  went  upon  the  premises  or  chattel  which  was 
defective  and  caused  the  injury,  but  the  person  whose 
property  was  injured  in  this  case  was  not  an  actor  in 
any  way,  but  the  oil  which  escaped  invaded  the  premises 
and  then  caused  the  damages.  The  oil  company  was  the 
active  creator  of  the  nuisance  and  the  authorities  are 
strong  enough  to  hold  it  liable. 

1.  Nugent  vs.  Boston  C.  &  M.  Ry.,  80  Me.,  62. 

2.  Godley  vs.  Hogerty,  20  Pa., 387;  Carson  vs.  Godley,  26  Pa.,  111. 


Defect  in  an  Article  Baled.  377 

SEC.  5.  THE  BAILOR  OF  AN  ARTICLE  Is  LIABLE  FOR 
INJURIES  TO  A  THIRD  PERSON  WHEN  THE  ARTICLE  Is 
UNSUITABLE  FOR  THE  PURPOSE  FOR  WHICH  IT  Is  IN- 
TENDED.— The  court  sought  to  distinguish  Haven  vs.  Pen- 
der,  L.  R. ,  11,  Q.  B. ,  506,  and  like  case  from  the  case  on  hand, 
and  said :  "There  is  a  class  of  cases  holding  the  building  of 
a  scaffolding  to  be  used  by  workmen  and  negligently  con-~ 
structed,  rendering  it  unsafe,  liable  for  an  injury  occur- 
ring from  its  use.  These  cases  recognize  the  rule  that 
the  liability  of  the  builder  is  generally  to  the  person 
with  whom  he  contracted,  but  rest  the  liability  to  third 
persons  upon  the  ground  that  the  defect  was  such  that 
it  rendered  the  article  in  itself  immediately  dangerous, 
and  that  serious  injury  was  the  natural  and  probable 
consequence  of  its  use. " 

The  case  of  Haven  vs.  Fender  was  one  where  a  dock 
owner  provided  a  scaffolding  to  be  used  by  a  ship  owner 
in  painting  the  ship,  and  the  ship  owner  let  the  contract 
to  paint  the  ship,  and  the  contractor  hired  a  servant  who 
was  injured  in  using  the  scaffolding,  and  the  servant 
brought  an  action  against  the  dock  owner.  Now,  the 
scaffolding  was  not  immediately  dangerous  to  the  ser- 
vant or  any  other  person,  and  only  became  dangerous 
when  the  servant  went  upon  it  and  was  using  it  for  the 
purpose  for  which  it  was  intended.  So  it  was  with  the 
tank  car.  It  became  dangerous  when  the  appliances 
were  used  for  a  purpose  for  which  they  were  intended, 
and  caused  the  damages  when  so  used. 

The  reasons  given  by  the  court  for  its  decision  that 
when  the  dock  owner  furnished  the  ship  owner  the  stag- 
ing, the  dock  owner  did  so  because  it  was  to  his  interest 
to  do  so,  since  the  ship  was  received  at  the  docks  for 
repair,  and  were  provided  with  the  staging,  and  the 
work  was  to  be  done  at  the  docks,  so  any  person  who 
used  the  appliances  provided  by  the  dock  owner  did  so 
under  an  implied  invitation,  as  all  such  appliances  were 
incident  to  the  use  of  the  docks,  and  the  dock  owner 
owed  a  duty  to  such  persons  to  provide  safe  appliances. 
The  dock  owner  received  the  ship  in  the  harbor  for  the 


378  Injury  to  Third  Person. 

purpose  of  repair,  and  placed  staging  around  the  ship  so 
that  it  may  be  repaired,  and  received  compensation  for 
allowing  the  work  to  be  done,  and  the  fact  that  the 
owner  did  not  retain  control  of  the  staging  did  not  re- 
lease him  from  liability  in  such  a  case  because  the  stag- 
ing was  supplied  to  be  used  immediately  in  painting  the 
ship,  and  the  liability  is  the  same  as  if  articles  were  fur- 
nished to  be  used  on  the  ship  then  in  course  of  construc- 
tion, and  such  articles  proved  defective,  and  the  persons 
so  using  them  would  not  have  the  time  or  opportunity  to 
discover  the  defect.  The  same  rule  applies  to  the  case 
of  the  oil  company  because  it  furnished  the  tank  car  and 
did  so  as  bailor  and  for  profit,  and  the  defect  was  in  the 
car  when  delivered  to  the  gas  company,  and  the  servants 
of  the  gas  company  could  not  discover  the  defect  by  or- 
dinary inspection,  and  the  oil  was  to  be  removed  imme- 
diately, and  the  appliances  proved  defective  when  put 
to  the  use  for  which  they  were  intended,  and  an  injury 
resulted  to  a  third  person,  one  who  had  no  opportunity  to 
discover  or  remedy  the  defects. 

In  Massachusetts,  the  owner  of  a  building,  when  he 
undertook  to  furnish  a  scaffolding,  was  held  to  be  under 
an  obligation  to  furnish  an  absolute  safe  staging  for  a 
building,  and  was  liable  for  injuries  to  a  servant  of  a 
contractor  to  whom  absolute  possession  was  given  of  the 
staging,  but  the  defect  existed  before  a  delivery  of  the 
staging  which  the  owner  furnished  to  the  contractor. ' 

The  same  rule  was  laid  down  in  New  York,  where  a 
firm  of  contractors  made  an  agreement  with  the  owner  of 
a  building  to  put  a  cornice  on  the  building,  and  agreed 
to  put  up  a  staging  for  the  contractors  free  of  cost,  if  any 
was  needed,  and  a  staging  was  put  up  and  one  of  the 
servants  of  the  contractors  was  injured  by  reason  of  a 
defect  in  the  staging.  The  owner  of  the  building  was 
bound  to  furnish  a  safe  staging,  and  his  liability  was  the 
same  as  if  he  had  put  up  an  insecure  building  which  fell 
and  injured  a  person  lawfully  on  the  premises.2 

1.  Melchey  vs.  Methodist  Religious  Soc.,  125  Mass.,  487. 

2.  Caughtry  vs.  Globe  Wooden  Co.,  56  N.  Y.,  124. 


Liability  of  a  Bailor  to  a  Third  Person.  379 

The  court  seems  to  have  lost  sight  of  the  fact  that 
the  gas  company  was  but  a  temporary  bailee  of  the  tank 
car,  and  for  that  reason  rights  growing  out  of  bailment 
will  be  discussed  further,  to  a  limited  extent,  though  it 
may  seem  somewhat  out  of  place. 

SEC.  6.  LIABILITY  OP  THE  KEEPER  OF  HORSES  AND 
CARRIAGES  FOR  HIRE  FOR  INJURIES  TO  THE  PERSON  WHO 
HIRES  THEM  AND  THIRD  PERSONS. — Thus,  where  the 
owner  of  a  livery  barn  hires  a  horse  to  a  husband  and  the 
wife  is  injured  because  the  horse  had  a  vicious  habit  of 
kicking  and  running  away,  the  owner  of  the  horse  was 
held  liable.  "It  was  the  duty  of  the  defendant  to  furnish 
a  horse  that  had  no  vicious  habit,  and  if  he  knew  of  the 
existence  of  the  habit,  or  if  by  the  exercise  of  reasonable 
care  he  could  ascertain  that  the  horse  was  not  suitable 
for  the  use  of  hire,  he  ought  to  have  known  that  the  horse 
was  dangerous,  he  is  liable  for  such  injuries  from  his 
wrongful  conduct.  '51  The  wife  in  this  case  was  a  stranger 
to  the  contract,  yet  the  owner  was  liable,  and  the  ground 
of  the  decision  is  that  it  was  not  suitable  for  the  purpose 
for  which  it  was  kept  and  hired. 

So  where  the  owner  of  a  coach  hires  it  to  a  third  per- 
son and  the  third  person's  guest  is  injured  in  the  use  of 
the  coach  and  the  injuries  were  caused  by  defects  in  the 
coach  when  hired,2  or  if  the  person  who  bails  a  chattel 
knows  the  use  to  which  it  is  to  be  put  and  there  are 
secret  defects  which  are  liable  to  cause  injury  and  no 
information  of  such  defects  is  given  to  the  bailee,  the 
bailor  is  liable  for  injuries. 8 

There  are  many  well  considered  cases  which  lay 
down  the  rule  that  the  bailor  of  horses  and  carriages  for 
hire  warrants  that  the  horses  and  carriages  are  reasona- 
bly fit  and  suitable  for  the  purpose  for  which  they  are 
hired. 

Thus,  where  the  horse  had  the  habit  of  running  away 
and  the  hirer  ought  to  have  known  of  that  fact,  he  is  lia- 

1.  Lynch  vs.  Richardson,  163  Mass.,  160;  39  N.  E.,  801. 

2.  Glenn  vs.  Winters,  17  Misc.,  597. 

3.  Caughlin  vs.  Gillison,  1  Q.  B.,  149  (1899). 


380  Defective  Vehicles. 

ble  to  the  wife1  of  the  person  who  hired  the  horse  as  well 
as  to  the  hirer;8  and  is  liable  without  regard  to  any  con- 
tract of  bailment  where  the  horse  is  vicious  and  the 
owner  had  notice  and  the  person  injured  has  no  notice.8 

So  where  the  harness  breaks  and  an  occupant  of  the 
vehicle  is  injured,  the  bailor  is  liable  where  the  harness 
was  old  and  defective  and  consequently  unsuitable  for 
the  purpose  for  which  the  harness  were  used. 4  The  bailor 
of  a  carriage  is  liable  where  he  lets  a  defective  carriage 
which  causes  injury  if  the  defect  could  have  been  discov- 
ered by  reasonable  care  and  skill.5  So  where  a  bolt 
proves  defective  and  gives  way  and  results  in  an  injury 
to  the  occupant  the  bailor  is  liable;9  and  where  a  seat  is 
not  properly  secured  and  an  injury  is  caused  thereby  to 
the  occupant,  the  bailor  cannot  escape  liability  for 
such  injuries.7 

The  owner  of  a  rig  is  liable,  although  the  person  who 
procures  the  rig  selects  it  from  among  the  rigs  kept  for 
hire,  and  thus  had  an  opportunity  to  examnie  the  rig  be- 
fore it  was  used  but  failed  to  do  so,  for  the  law  does  not 
impose  on  the  bailee  a  duty  to  examine  the  rig.8  The 
doctrine  as  to  the  liability  of  the  bailor  as  laid  down  by 
Story  in  his  work  on  bailments  is  that  the  bailor  for  hire 
generally  warrants  the  suitableness  of  the  thing  let.9 

There  is  no  reason  why  the  doctrine  of  these  cases 
should  not  apply  to  the  bailor  of  an  oil  tank  as  well  as 
to  the  bailor  of  a  horse,  harness  or  carriage,  and  thus 
charge  the  Standard  Oil  Company,  as  owner  of  the  tank, 

1.  Lynch  vs.  Richardson,  163  Mass.,  160;  39  N.  E.,  801. 

2.  Hume  vs.  Meakin,  115  Mass.,  326. 

3.  Copeland  vs.  Draper,  157  Mass.,  328;  Comm.  vs.  Pierce,  138 

Mass.,  165;  Dickson  vs.  McCoy,  39  N.  Y.,  400. 

4.  Hadley  vs.  Cross,  34  Vt.,  586. 

5.  Jones  vs.  Page,  15  L.  R.  N.  S.,  619;  Hyman  vs.  Nye,  L.  R.,  16 

Q.  B.  Div.,685. 

6.  Hyman  vs.  Nye,  L.  R.  16  Q.  B.  Div.,  685. 

7.  Erickson  vs.  Barber,  83  la.,  367;  49  N.  W,  838. 

8.  Jones  vs.  Page,  15  L.  R.  N.  S.,  619. 

9.  Story  on  Bailments,  Sects.  383,  390;  Harrington  vs.  Snyder,  3 

Barb.,  380. 


Contributory  Negligence.  381 

with  the  duty  to  have  it  fit  and  suitable  for  the  purpose 
for  which  it  was  intended. 

SEC.  7.  WERE  THE  SERVANTS  OP  THE  GAS  COMPANY 
GUILTY  OF  CONTRIBUTORY  NEGLIGENCE  IF  THE  INJURY 
WAS  TO  THEM? — When  the  shipper  of  an  article  under- 
takes to  furnish  a  vehicle  by  which  an  article  is  to  be^ 
transported  and  the  vehicle  is  to  be  unloaded  by  the  con- 
signee, the  duty  of  the  shipper  toward  a  servant  of  the 
consignee  is  well  stated  by  an  eminent  court  in  Elliott  v. 
Hall,  L.  R.  15  Q.  B.  315,  in  the  following  language: 

"This  appears  to  me  to  be  a  much  stronger  case  in 
favor  of  the  plaintiff  than  the  case  of  Haven  v.  Fender. 
The  question  is  whether  the  defendant  who  had  entire 
dominion  over  the  truck  is  liable  to  the  plaintiff  in  re- 
spect to  its  defective  condition.  It  was  clearly  a  part  of 
the  contract  for  the  sale  of  the  coal  to  plaintiff's  em- 
ployees that  it  should  be  conveyed  in  a  truck  to  the 
buyer;  and  that  it  must  necessarily  have  been  contem- 
plated that  when  it  arrived  at  its  destination,  the  truck 
would  have  been  unloaded  by  the  buyer's  servants.  I 
think  that  it  is  plain  that  under  the  circumstances  a  duty 
arose  on  the  part  of  the  defendant  toward  the  plaintiff. 
If  the  vendor  of  goods  forwards  them  to  the  purchaser 
and  for  that  purpose  supplies  a  truck  or  other  means  of 
conveyance  for  the  carriage  of  the  goods,  and  the  goods 
are  necessary  to  be  unloaded  from  the  means  of  convey- 
ance by  the  purchaser's  servants,  it  seems  to  me  per- 
fectly clear  that  there  is  a  duty  on  the  part  of  the  vendor 
toward  those  persons  who  necessarily  have  to  unload  or 
otherwise  deal  with  the  goods  to  see  that  the  truck  or 
other  means  of  conveyance  is  in  good  condition  and  re- 
pair so  as  not  to  be  dangerous  to  such  persons."  If  any 
one  was  guilty  of  negligence  in  removing  the  oil  from 
the  tank  in  the  Goodlander  case,  it  was  the  servants  of 
the  gas  company  and  if  an  injury  occurred  to  them,  no 
recovery  could  be  had  under  the  ruling  of  the  court,  but 
if  it  was  the  duty  of  the  oil  company  to  furnish  a  safe 
and  suitable  tank  for  them  as  was  required  in  the  case 
of  Elliott  v.  Hall,  then  did  not  the  law  require  of  it  to  as- 


382  When  Notice  Must  be  Given. 

certain  that  the  tank  was  in  good  condition  so  that  the 
property  of  another  would  not  be  injured  and  not  relieve 
the  author  of  the  defect  from  liability  in  case  the  ser- 
vants fail  to  do  so?  The  servants  were  not  required  to 
examine  the  tank  for  their  own  safety  for  the  law  im- 
posed no  such  duty  upon  them. * 

SEC.  8.  MEASURE  OP  DUTY — WHEN  NOTICE  MUST 
BE  GIVEN. — The  care  required  of  the  owner  of  a  chattel 
bailed  to  a  bailee  is  measured  by  the  dangers  to  be  ap- 
prehended from  the  use  of  the  chattel  and  when  the  thing 
bailed  is  not  dangerous  when  in  an  ordinary  state  of  re- 
pair it  is  the  duty  of  the  bailor  to  give  notice  of  any  de- 
fects which  might  cause  injury  from  its  use. 2  It  was  the 
duty  of  the  oil  company  not  to  lead  the  gas  company  into 
a  trap  without  notice.8  Then,  again,  the  valve  was  put 
in  the  tank  for  the  purpose  of  keeping  the  oil  in  the  tank 
and  it  was  once  there  and  the  servants  of  the  gas  com- 
pany had  a  right  to  presume  that  it  was  still  there,  be- 
cause when  things  have  once  existed  in  a  particular  state 
they  are  presumed  to  continue  so  until  the  contrary  is 
known.4  Hence  the  duty  of  the  oil  company  to  furnish  a 
safe  and  suitable  vehicle  intended  for  the  purpose  for 
which  it  was  to  be  used;  its  negligence  in  loading  the 
tank  with  oil  without  a  valve;  its  failure  to  give  notice 
to  the  consignee  of  the  absence  of  the  valve;  and  the 
leakage  of  the  oil  from  the  tank  while  yet  in  the  hands 
of  the  carrier  ought  to  be  sufficient  at  least  to  warrant 
the  submission  of  the  case  to  a  jury  when  the  only  notice 
of  any  defect  to  the  agents  of  the  gas  company  was  the 
leak  of  the  tank  but  the  agents  had  a  right  to  presume 
that  the  valve  which  was  designed  to  hold  the  oil  in  the 
tank  was  there.  This  ought  to  be  more  especially  true 
where  the  party  who  was  injured  was  in  no  way  respon- 
sible for  the  destruction  of  his  property,  and  it  was  not 

1.  See  section  6,  supra. 

2.  King  vs.  National  Oil  Co.,  81  Mo.  App.,  155. 

3.  Baker  vs.  Tibbitts,  102  Mass.,  466;  39  N.  E.,  350. 

4.  Metzger  vs.  Schultz,  16  Ind.  App.,  454;  45  N.  E.,  619;  Smith 

vs.  Railroad  Co.,  43  Barb.,  225. 


Unloading  Oil  at  a  Place  of  Danger.  383 

shown  that  it  was  within  his  power  to  prevent  the  in- 
jury. The  oil  company  owed  a  duty  to  the  public  and  to 
the  owners  of  the  mill  as  a  member  of  the  public  not  to 
place  it  within  the  power  of  the  gas  company  to  do  in- 
jury to  the  public  by  the  use  of  defective  appliances  fur- 
nished to  the  gas  company  by  the  oil  company.  If  a  gas 
company  negligently  permits  gas  to  escape  and  after  the" 
gas  has  escaped  a  responsible  third  person  applies  a 
match  to  the  gas  and  the  gas  explodes  and  destroys  the 
building  of  another  person,  the  gas  company  is  liable;  yet 
the  gas  would  do  no  harm  but  for  the  acts  of  such  person. 
The  liability  of  the  oil  company  ought  to  be  measured 
by  the  same  standard.  * 

SEC.  9.  NEGLIGENCE  IN  BRINGING  THE  CAR  IN  CLOSE 
PROXIMITY  TO  THE  MILL  WHERE  AN  ENGINE  AND  BOILER 
AND  HOT  ASHES  WERE  IN  THE  BASEMENT  OF  THE  MILL. — 
The  court  also  deemed  it  an  act  of  negligence  on  the  part 
of  the  servants  of  the  gas  company  to  place  the  car 
within  three  feet  of  the  boiler  and  engine,  and  within  eight 
feet  of  hot  ashes,  which  was  below  the  grade  of  the  track 
and  near  an  open  window.  In  discussing  this  feature  of 
the  case  the  court  said:  "With  the  knowledge  (of  the 
oil  leaking)  the  company  placed  the  car  within  three  feet 
of  the  engine  and  boilers  of  the  mill,  located  below  the 
grade  of  the  railroad,  and  with  knowledge  of  the  leakage, 
sufficient,  in  view  of  the  dangerous  proximity  of  fire,  to  the 
place,  a  careful  person,  upon  diligent  inquiry,  undertook 
to  discharge  the  oil  in  close  proximity  to  hot  ashes,  and 
near  an  open  window  of  the  boiler  room.  We  cannot  say 
that  the  negligent  omission  of  the  valve  'necessarily  set 
the  other  causes  in  operation,'  nor  can  we  say  that  the 
injury  was  the  natural  and  probable  consequence  of  the 
negligent  act.  In  marshalling  the  probable  consequences, 
which  ordinary  sagacity  should  have  foreseen  as  proba- 

1.  Pine  Bluff  Water  &  Light  Co.  vs.  McClain,  62  Ark.,  118;  34  S. 
W.,  549;  see  Moon  vs.  Northern  Pac.  Ry.  Co.,  46  Minn,  106; 
48  N.  W,  679;  Pennsylvania  Ry.  Co.  vs.  Snyder,  55  Ohio, 
342;  45  N.  E.,  559;  Hansen  vs.  St.  Paul  Gas  Light  Co.,  82 
Minn.,84;84N.W.,727. 


384  Concurrent  Negligence. 

bly  resulting  from  the  omission  of  the  valve,  it  would, 
as  we  conceive,  appear  unlikely  and  abnormal  that  this 
injury  should  result.  We  are  of  the  opinion  that  the  in- 
tervening and  independent  act  of  the  gas  company  was 
the  efficient  cause,  self-operating,  by  which  the  negligent 
act  of  the  defendant  was  rendered  effective  to  an  injury 
that  was  not  the  probable  and  natural  consequence  of 
the  act.  "  The  supreme  court  of  Illinois,  in  Pullman  Pal- 
ace Car  Company  vs.  Laack,  143  111.,  242;  18  L.R.A.,  215,  in 
response  to  a  proposition  that  "the  negligence  of  the 
fellow-servant  intervening  as  an  efficient  cause  of  the 
injury,  the  negligence  of  the  master,  if  any,  is  attribu- 
table, became  the  remote  and  not  the  proximate  cause," 
said:  "The  fallacy  of  the  proposition  lies  in  the  assump- 
tion of  the  fact  that  the  negligence  of  the  fellow-servant, 
was  in  and  of  itself  a  new  and  efficient  cause  of  injury. 
Whether  the  negligence  of  the  defendant  was  the  proxi- 
mate cause  of  the  injury  was  a  question  of  fact,  also,  to 
be  determined  by  the  jury  under  proper  instructions  from 
the  court,"  and  the  cases  which  hold  it  to  be  a  question 
of  law  are  "in  the  teeth  of  almost  numberless  decisions 
and  as  unsupported  by  reason, "  and  that  "if  at  the  time 
of  the  negligence  the  wrongdoer  might,  by  the  exercise 
of  ordinary  care,  have  foreseen  that  some  injury  might 
result  from  his  negligence,"  he  is  liable.  In  such  a  case 
it  is  not  necessary  that  the  wrongdoer  could  have  fore- 
seen that  a  particular  injury  might  result  from  the  act, 
but  it  is  sufficient  if  some  injury  might  result. 

"If  the  wrong  of  the  appellant  put  in  motion  the 
destructive  agency,  and  the  result  is  directly  attributable 
thereto,  and  there  was  no  intervention  of  a  new  force  or 
power  of  itself  sufficient  to  stand  as  the  cause  of  the 
mischief,  the  negligence  of  the  appellant  must  be  consid- 
ered the  proximate  cause  of  the  injury,  if  it  could  have 
been  foreseen  by  the  exercise  of  ordinary  care  that  in- 
jury might  or  would  result  from  the  negligence.  The 
negligence  of  the  fellow-servant,  whether  it  be  treated 
as  creating  a  condition  merely  or  as  a  cause,  was  not  an 
intervening  efficient  cause,  as  to  break  the  casual  con- 


Negligence  of  a  Fellow  Servant.  385 

nection  between  the  negligence  of  the  appellant  and  the 
injury.  The  destructive  agency  set  in  motion  by  the 
negligence  of  the  appellant  increased  in  extent  by  the 
flow  of  burning  oil,  igniting  whatever  was  in  its  way  that 
was  combustible.  This  followed  as  a  natural  and  inevi- 
table sequence,  and,  coming  in  contact  with  the  oil  on 
appellant's  clothing,  ignition  followed  as  a  natural ~re-- 
suit. " 

"It  therefore  required  the  combined  negligence  of  the 
appellant  and  the  fellow  servant  to  produce  the  conse- 
quences resulting  in  the  appellee's  injury.  It  is  well 
settled  that  where  the  injury  is  the  result  of  the  negli- 
gence of  the  defendant  and  that  of  a  third  person,  or  of 
the  defendant  and  an  inevitable  accident,  or  an  inani- 
mate thing  has  contributed  with  the  negligence  of  the 
defendant  to  cause  the  injury,  the  plaintiff  may  recover, 
if  the  negligence  of  the  defendant  was  the  efficient  cause 
of  the  injury.  In  such  a  case  the  negligence  of  two  inde- 
pendent persons  resulting  in  injury  to  the  third,  where 
neither  is  sufficient  within  itself,  both  are  treated  in  com- 
bination as  the  proximate  cause  of  the  injury." 

The  negligence  in  the  Laack  case  was  a  failure  to  have 
a  valve  in  a  supply  pipe  which  fed  crude  petroleum  to  a 
brick  kiln  so  that  the  oil  could  be  shut  off  in  case  of  an 
accident  and  there  was  a  valve  in  a  pipe  previously  used 
and  a  new  pipe  was  put  in  which  had  no  valve  and  the 
servant  had  no  notice  of  the  change.  The  negligence  of 
the  fellow  servant  was  his  failure  to  adjust  the  valve  in 
the  tank  to  shut  off  the  flow  of  oil,  and  the  servant  in- 
jured went  under  the  tank  and  unscrewed  the  feed  pipe 
and  the  oil  flowed  over  him  and  caught  fire  because  the 
valve  in  the  tank  was  not  adjusted.  It  became  necessary 
to  do  this  on  account  of  the  absence  of  the  valve  in  the 
feed  pipe.  So  when  a  gas  company  permits  gas  to  escape 
and  the  gas  finds  its  way  to  a  greenhouse  and  destroys 
part  of  the  flowers,  the  gas  company  is  liable  for  value 
of  the  flowers  that  were  not  destroyed  when  they  could 
not  be  sold,  because  it  was  necessary  to  have  the  flowers 
that  were  destroyed  to  blend  with  them  to  suit  the  peo- 


386  Manufacture  of  Dangerous  Articles. 

pie's  taste.     The  negligence  of  the  gas  company  and  not 
the  people's  taste  was  the  proximate  cause  of  the  loss.1 

SEC.  10.  INJURIES  TO  THIRD  PERSONS  ON  ACCOUNT 
OF  THE  ORIGINAL,  DEFECTS  IN  THE  ARTICLE. — In  the 
Goodlander  Mitt  Co.  v.  Standard  Oil  Co.  the  rights  of  the 
mill  company  were  considered  by  the  court  in  the  same 
light  as  if  title  had  passed  to  the  gas  company.  There 
are  many  well  considered  cases  which  lay  down  the  rule 
that  where  there  is  a  defect  in  the  article  sold  and  that 
the  manufacturer  or  the  vendor,  as  the  case  might  be, 
knew  of  such  defect  or  could  have  known  by  the  exercise 
of  reasonable  care,  the  manufacturer  or  vendor  is  re- 
sponsible to  third  persons  for  damages,  caused  by  such 
defect.  Thus,  when  refiners  and  vendors  of  oil  place  the 
same  on  the  market  and  the  oil  is  below  the  test  required 
by  law,  and  the  oil  is  sold  to  a  retail  dealer,  and  the 
retail  dealer  sells  the  same  to  third  persons,  and  the  oil 
exploded  when  used  in  a  lamp  for  illuminating  purposes 
and  caused  the  death  of  a  person,  the  refiners  and  ven- 
dors were  held  responsible  for  damages.8  So,  where  a 
vendor  of  naphtha  sold  the  same  to  a  grocer  as  kerosene, 
and  the  grocer  sold  the  same  to  a  person  who  bought  it 
to  be  used  in  a  lamp,  and  the  original  vendor  knew  that 
the  vendee  intended  to  sell  the  oil  to  his  customers,  the 
vendor  was  held  responsible  for  the  damages  resulting 
from  the  use  of  the  naphtha.3 

So,  in  a  case  where  the  manufacturer  of  ladders  con- 
structed one  of  defective  material  and  the  material  used 
was  obviously  defective,  and  the  ladder  was  put  among 
his  general  stock  and  was  sold  to  a  retail  dealer,  and  the 
retail  dealer  sold  the  ladder  to  a  customer  who  received 
injuries  by  reason  of  the  original  defects,  the  manufac- 
turer was  held  liable  for  the  injuries  received  by  the 
purchaser  from  the  retail  dealer.  The  defect  was  not 
obvious  to  the  purchaser  because  the  tladder  was  oiled 
and  varnished  and  the  defects  were  covered  up.  No  con- 

1.  Hansen  vs.  St.  Paul  Gas  Light  Co.,  82  Minn.  84;  84  N.W.,  727. 

2.  Elkins  vs.  McKean,  79  Pa.,  493. 

3.  Wellington  vs.  Dawner  Kerosene  Co.,  104  Mass.,  64. 


Liability  of  a  Shipper.  387 

tract  relations  existed  between  the  purchaser  and  the 
manufacturers  of  the  ladder,  nor  did  the  latter  know  that 
the  purchaser  received  the  defective  ladder  because  it 
could  not  have  been  distinguished  from  the  others  in 
stock,  but  "the  question  of  the  defendant's  liability  reaches 
back  to  the  time  of  manufacturing  and  putting  into  its 
stock  of  goods  for  sale  an  article  then  known  to  be  dan- 
gerously defective,"  and,  though  there  was  no  wrong  at 
the  time  the  ladder  was  delivered,  because  the  defects 
could  not  then  be  seen  and  the  wrong,  if  any,  was  at  the 
time  it  was  put  in  the  general  stock,  but  it  would  not 
change  their  real  relations  as  cause  and  effect,  nor  so 
qualify  that  relation  that  the  law  would  regard  the 
injury  as  being  so  remote  from  the  wrong  that  for  that 
reason  responsibility  should  cease.  When  the  defendant 
manufactured  and  put  the  dangerously  faulty  article  in 
his  stock  for  sale,  it  is  to  be  deemed  to  have  anticipated 
that,  in  the  ordinary  course  of  events,  it  would  come  into 
the  hands  of  a  purchaser,  either  directly  from  the  de- 
fendant or  from  some  intermediate  dealer,  for  actual  use, 
and  with  the  consequences  which  actually  were  suf- 
fered.1 These  cases  illustrate  the  principle  of  the  rule 
that  a  wrongdoer  is  responsible  for  the  probable  conse- 
quences of  his  acts  and  is  liable  although  no  contract 
relations  exist. 

SEC.  11.  LIABILITY  OF  THE  SHIPPER  TO  THE  SER- 
VANT OF  THE  CARRIER. — The  shipper  of  naphtha  is  lia- 
ble for  an  injury  to  a  servant  of  a  railroad  company 
who  was  injured  by  a  stream  of  naphtha  which  came  in 
contact  with  the  flame  of  the  lamp  while  the  servant, 
with  others,  in  the  night  time,  was  in  the  act  of  remov- 
ing the  naphtha,  which  was  confined  in  a  barrel,  from 
among  some  other  barrels  in  the  car,  which  were  also 
filled  with  naphtha,  because  the  barrel  was  leaking. 
The  liability  of  the  shipper  rested  upon  the  facts  that 
naphtha  was  an  extremely  dangerous  explosive,  and  that 
it  was  the  duty  of  the  shipper  to  so  brand  the  barrels 
that  the  servants  of  the  railroad  company  would  know 

1.  Schubert  vs.  Clark  &  Co.,  49  Minn.,  331;  15  L.  R.  A.,  818. 


388  Injuries  to  Passengers. 

or  be  put  on  their  guard  with  respect  to  the  dangers 
connected  with  it.  In  this  case  the  only  warning  the 
servant  had  was  that  the  heads  of  the  barrels  which  con- 
tained the  naphtha,  and  which  were  painted  white,  had 
written  across  the  head  the  words:  "Unsafe  for  illumin- 
ating purposes."  This  inscription  was  held  to  be  insuffi- 
cient where  the  freight  bill  of  the  car,  which  contained 
thirty  barrels  of  ordinary  illuminating  oil  and  thirty-five 
barrels  of  naphtha,  showed  that  the  contents  of  the  bar- 
rels was  carbon  oil.  The  brand  on  the  barrels  and  the 
freight  bill  were  not  sufficient  to  apprise  the  servant  of 
the  dangers  connected  with  the  article.1  Where  the 
shipper  sets  up  contributory  negligence  on  the  part  of 
the  servant  in  going  into  the  car  with  a  lighted  lamp  it 
is  competent  for  the  person  injured  to  show  by  persons 
familiar  with  illuminating  oil  that  there  was  no  danger 
in  going  into  a  car  with  a  lighted  lamp  if  the  oil  was 
ordinary  illuminating  oil,  which  the  person  injured  be- 
lieved it  to  be.8  The  defendant  may  show  that  wooden 
barrels  are  safe  and  that  naphtha  was  ordinarily  shipped 
in  that  way  by  prudent  business  men.8  The  shipper  was 
not  relieved  from  liability  because  the  officers  of  the  rail- 
road company  and  the  shipper  agreed  that  the  naphtha 
may  be  shipped  in  that  way. 4 

SEC.  12.  INJURIES  TO  PASSENGERS  FROM  AN  EX- 
PLOSION OF  NAPHTHA  AND  OIL  CAUSED  BY  A  WRECK  OF 
A  FREIGHT  TRAIN. — The  facts  on  which  an  action  was 
brought  by  a  passenger  were  as  follows:  A  freight  train 
on  the  road  became  separated,  and  the  part  which  be- 
came detached  from  the  engine  and  other  cars  consisted 
of  two  tank  cars  of  naphtha,  one  of  kerosene  oil,  a  car 
of  coke  and  a  caboose,  and  was  wrecked  and  set  on  fire 

1.  Standard  OilCo.  vs.  Tierney,  92  Ky.,  367;  17  S.  W.,  1025;  14 

L.  E.  A.,  677. 

2.  Standard  Oil  Co.  vs.  Tierney,  95  Ky.,  633;  96  Ky.,  89  27;  S. 

W.,  983. 

3.  Standard  Oil  Co.  vs.  Tierney,  92  Ky.,  367;  17  S.  W.,  1025;  14 

L.  R.  A.,  677. 

4.  Standard  Oil  Co.  vs.  Tierney,  92  Ky.,  367;  17  S.;W.  1025. 


Injury  to  Passenger.  389 

and  was  in  a  dangerous  condition.  The  person  who  was 
injured  was  a  regular  passenger  on  the  railroad,  and 
when  the  train  came  near  the  place  of  the  wreck  he  was 
informed  of  the  wreck  and  that  the  train  on  which  he 
was  aboard  could  not  proceed  beyond  the  wreck,  but 
that  in  a  short  time  another  train  would  come  to  a  place_ 
beyond  the  wreck  and  that  he  and  the  other  passengers 
would  be  transferred  to  the  other  train  so  they  may  pro- 
ceed on  their  journey.  The  passengers  were  requested 
to  retain  their  places  in  the  cars  until  the  other  train 
arrived,  but  the  passengers  would  not  remain  in  the  cars 
and  were  then  transferred  to  a  place  of  safety  beyond 
the  wreck.  A  gap  was  opened  in  the  fences  along  the  right 
of  way  so  that  the  passengers  would  be  a  safe  distance 
from  the  burning  oil  and  naphtha,  and  were  transferred 
in  safety  to  a  distance  beyond  the  wreck  which  was  free 
from  danger.  The  person  injured  passed  by  the  burning 
naphtha  and  oil,  which  were  burning  fiercely  and  made 
a  loud  noise,  but  after  the  passenger  entered  the  gap 
upon  the  right  of  way  after  passing  beyond  the  burning 
oil  and  naphtha  he  went  back  along  the  railroad  track 
toward  the  wreck,  about  two-thirds  the  distance  from, 
the  gap,  and  stood  there  about  one-half  hour  before  the 
naphtha  and  oil  exploded.  The  passenger  was  injured 
and  contended  that  the  railroad  company  was  negligent 
in  not  warning  him.  The  evidence  of  the  railroad  com- 
pany tended  to  show  that  the  agents  of  the  company  in- 
dicated a  place  where  the  passengers  should  remain  until 
the  other  train  arrived  and  that  the  place  was  safe  if  he 
had  remained  there,  but  that  he  left  the  place  of  safety 
of  his  own  accord.  The  court  held: 

First — That  the  oil  and  naphtha  were  still  burning 
fiercely  and  made  a  loud  roaring  noise  and  that  the  flames 
from  the  wreck  shot  high  in  the  air,  hence  the  passen- 
ger should  have  taken  notice  of  the  danger  as  they  "gave 
clear  and  emphatic  warning  to  the  humblest  intelligence 
of  the  impending  danger  from  the  burning  tank  of  oil." 

Second — The  plaintiff  was  in  an  open  country  and 
without  any  restraint,  and  it  was  his  duty  to  avoid  the 


390  Ordinary  Care  Only  Required. 

dangers  which  were  so  apparent,  and  the  defendant  had 
a  right  to  assume  that  the  passenger  would  occupy  the 
place  to  which  he  was  conducted  and  that  he  would  not 
expose  himself  to  such  obvious  danger. 

Third — The  special  findings  of  the  jury  that,  the  offi- 
cers of  the  railroad  company  "in  the  exercise  of  ordinary 
prudence  should  have  known  of  the  plaintiff's  position 
in  time  to  warn  him  of  the  dangers  which  threatened  on 
account  of  the  burning  tank,"  and  "in  the  exercise  of 
reasonable  care  they  ought  to  have  anticipated  that  the 
plaintiff  would  go  nearer  to  the  burning  tank  and  incur 
unnecessary  danger,"  were  contradictory  with  the  finding 
that  he  would  not  have  been  injured  if  he  remained  in 
the  place  designated,  and  that  from  "motives  of  curiosity 
and  pleasure"  he  went  from  the  place  indicated  "much 
nearer  the  burning  tank,"  and  a  verdict  in  favor  of  the 
plaintiff  should  be  set  aside. 

Fourth — The  plaintiff  could  not  recover  if  his  acts 
contributed  to  the  injury  complained  of,  and  that  it  was 
not  negligence  on  the  part  of  the  railroad  company  not 
to  restrain  him  from  approaching  the  burning  tank. 

Fifth- -The  relation  of  carrier  and  passenger  still 
existed,  although  actual  transit  for  the  time  was  inter- 
rupted, as  he  had  a  right  to  complete  his  trip  on  the  de- 
fendant's cars,  and  the  taking  up  of  the  dangerous  posi- 
tion near  the  burning  tank  of  oil  may  bar  him  from  a 
right  to  recover  damages  for  his  injuries,  but  that  does 
not  affect  his  rights  as  a  passenger. 

Sixth — The  defendant  did  nothing  to  invite  him  to 
the  place  of  danger  so  he  had  to  exercise  ordinary  care 
for  his  own  safety. 

Seventh — An  instruction  is  erroneous  which  tells  the 
jury  "that  it  was  the  duty  of  the  carrier  to  exercise  ex- 
traordinary vigilance,  aided  by  the  highest  skill,  and  to 
exercise  the  highest  degree  of  care  to  prevent  the  inter- 
position of  any  obstacle  to  expose  the  plaintiff  to  danger 
while  waiting  for  the  train  to  arrive,"  as  the  defendant 
was  required  to  exercise  only  ordinary  care  and  pru- 
dence. 


Injury  to  a  Third  Person  on  the  Right  of  Way.         391 

Eighth — The  question  of  negligence  on  the  part  of 
the  plaintiff,  as  well  as  the  defendant,  was  for  the  jury 
to  determine  under  proper  instructions  from  the  court, 
so  the  court  granted  a  new  trial.1 

SEC.  13.  INJURIES  TO  PERSONS  WHO  CAME  UPON 
THE  RIGHT  OF  WAY  OF  A  RAILROAD  COMPANY  AND  ARE 
INJURED  BY  AN  EXPLOSION  OF  PETROLEUM. — A  collision 
took  place  between  a  locomotive  engine  and  a  train  of 
cars  which  were  running  over  the  defendant's  railroad 
and  a  train  of  cars  standing  on  the  sidetrack  of  the  rail- 
road. The  train  on  the  sidetrack  was  laden  with  tank 
cars  containing  petroleum  or  gasoline.  The  plaintiff  set 
up  that  the  oil  was  inflammable  and  explosive  when  ex- 
posed to  the  heat  and  fire,  and  that  the  cause  of  the  col- 
lision was  the  negligence  of  the  servants  of  the  defend- 
ants in  leaving  open  a  switch  which  lead  from  the  main 
track  to  the  sidetrack,  or  the  negligence  of  the  servants 
in  running  the  train  which  ran  into  the  sidetrack.  The 
collision  caused  some  of  the  oil  tanks  to  burst,  and  the 
escaping  oil  was  set  on  fire  by  sparks  or  fire  from  the 
defendant's  locomotive  engine.  The  oil  ran  along  the 
cars  and  was  communicated  to  oil  tanks  which  had  not 
been  burst  open  by  the  collision  or  exposed  to  the  fire 
when  it  first  started.  Some  two  hours  had  taken  place 
after  the  explosion  before  the  person  was  injured,  and 
the  defendant  could  have  put  the  fire  out  if  proper  efforts 
were  made  or  could  have  removed  the  tank  cars  to  a 
place  of  safety.  The  plaintiff  claimed  also  that  proper 
warning  was  not  given  of  the  danger,  and  that  at^the 
time  of  the  accident  he  was  in  the  exercise  of  proper 
care  for  his  own  safety,  and  that  he  was  at  the  time  of 
the  injury  assisting  to  put  out  the  fire  at  the  request  of 
one  of  the  servants  of  the  railroad  company. 

It  appeared  that  at  the  time  of  the  accident  the  plain- 
tiff was  two  miles  away  from  the  scene  and  that  he  and 
his  cousin  came  to  the  place,  and  that  at  the  time  of 
their  arrival  the  fire  was  burning  fiercely  and  that  the 

1.  Conroy  vs.  Chicago,  M.  &  0.  Ry.,  96  Wis.,  243;  TON.  W., 
468;  38  L.  R.  A.,  419. 


392  Injury  to  a  Licensee. 

oil  on  fire  made  a  loud  noise  like  steam  escaping  from 
an  engine,  and  that  he  did  not  come  upon  the  premises 
at  the  request  of  the  defendant  but  of  his  own  free  will. 

The  court  held  that  petroleum  was  not  in  itself  a 
dangerous  agency  but  became  so  when  exposed  to  heat 
and  fire.  That  the  plaintiff  was  not  a  trespasser  but  was 
engaged  in  a  laudable  work  in  assisting  to  prevent  the 
spread  of  fire,  and  that  if  he  exercised  due  care  and  cau- 
tion the  defendant  was  liable  for  negligence  in  leaving 
the  switch  open  and  in  not  stopping  the  fire  or  removing 
the  cars  so  that  fire  could  not  be  communicated  to  them, 
and  in  not  giving  proper  and  sufficient  warning  to  the 
person  injured.1 

Another  person  who  was  injured  in  the  same  accident 
and  who  went  with  plaintiff,  Henry,  to  the  place  and  was 
injured  whilst  assisting  in  preventing  the  spread  of  the 
fire,  brought  an  action  against  the  company  and  recov- 
ered, and  the  company  took  the  case  to  the  court  of  ap- 
peals and  that  court  reversed  the  judgment  below  and 
remanded  the  case.  In  passing  upon  the  case  the  court 
held  that,  '  'negligence,  to  be  actionable,  must  occur  in 
breach  of  legal  duty  arising  out  of  contract  or  otherwise, 
or  owing  to  the  person  sustaining  the  loss,"  and  defined 
"legal  duty"  to  be,  "that  which  the  law  required  or  for- 
borne to  a  determinate  person,  or  to  the  public  at  large, 
and  as  correlative  to  a  right  vested  in  such  person  or 
public  at  large."  The  person  injured  was  at  least  no 
more  than  a  mere  licensee  and  his  rights  were  no  greater 
than  a  fireman  who  may  enter  a  person's  premises  to  ex- 
tinguish a  fire.  In  such  a  case  the  licensee  must  take 
the  premises  as  he  finds  them.  The  negligent  act  of  leav- 
ing a  switch  open  was  the  breach  of  no  duty  toward  the 
person  injured  when  such  a  person  was  several  miles 
away  at  the  time  of  the  accident  and  voluntarily  came 
to  the  scene,  so  the  company  was  not  liable  for  the  con- 
dition of  the  premises  or  the  mishap  of  leaving  the  switch 
open.2  The  fact  that  he  was  assisting  the  servants  to 

1.  Henry  vs.  Cleveland,  C.C.  &  St.L.  Ry.,  67(C.C.),Fed.  R.,  426. 

2.  Cleveland,  C.  C.  &  St.  L.  Ry.  vs.  Bellentine,  84  Fed.  R.,  835; 

see  Gibson  vs.  Leonard,  143  111.,  182. 


Defective  Gar  Furnished  a  Shipper.  393 

prevent  the  spread  of  the  fire,  and  may  have  the  rights 
of  a  servant  of  the  company,  did  not  make  the  company 
liable,  because  the  dangers  were  obvious  and  he  should 
have  used  care  and  caution  for  his  own  safety. * 

SEC.  14.  INJURIES  CAUSED  BY  DEFECTS  IN  THE 
CARS  WHILE  IN  THE  CONTROL  OF  THE  SHIPPER  TO  BS 
LOADED. — In  an  action  brought  against  a  railroad  com- 
pany, which  was  the  owner  of  a  certain  tank  car  used  for 
the  shipment  of  oil,  for  damages  for  the  destruction  of  a 
house,  the  company  was  held  liable  where  the  defects 
were  in  the  car  at  the  time  it  was  delivered.  The  facts 
on  which  the  action  was  determined  were  as  follows: 
The  railroad  company  left  two  oil  tank  cars  to  be  filled 
by  a  servant  of  the  oil  company  with  oil  belonging  to  the 
oil  company,  and  the  cars  were  connected  together  when 
left  by  the  railroad  company.  The  cars  were  filled  at 
the  top  by  oil  from  a  tank  by  means  of  a  pipe  from  the 
tank  to  the  car.  When  one  of  the  cars  was  filled  it  was 
found  necessary  by  the  servant  of  the  oil  company,  who 
was  inexperienced  in  the  handling  of  cars,  to  move  the  car 
which  was  filled  forward  so  the  other  might  be  placed 
under  the  pipe  from  the  tank.  Both  cars  could  not  be 
moved,  so  the  servant  uncoupled  the  cars  and  then  moved 
the  car  which  was  filled  and  then  mounted  the  car  to  set 
the  brake,  but  was  unable  to  do  so  because  the  brake 
was  in  a  defective  condition.  The  direction  the  car  was 
going  was  a  steep  down  grade  and  the  servant  jumped 
from  the  car,  and  about  a  mile  or  so  from  where  the  car 
was  started  the  car  collided  with  an  engine  which  had 
been  standing  on  the  track  some  time  opposite  the  plain- 
tiff's house,  and  the  fire  in  the  engine  ignited  the  oil  in 
the  tank  car  and  burned  the  plaintiff's  house,  which  was 
some  twenty  feet  from  the  railroad  track.  The  servant 
had  no  notice  of  the  defective  condition  of  the  brake, 
and  the  cars  were  placed  in  his  charge  for  the  purpose 
of  being  filled  with  oil.  The  court  held  that  the  probable 
necessity  of  the  movement  of  this  car  must  have  been 

1.  Cleveland,  C.  C.  &  St.  L.  Ry.  vs.  Bellentine,  84  Fed.  R.,  835. 


394  Storing  Oil  Contrary  to  a  Statute. 

known  to  the  defendant  and  the  railroad  company  fur- 
nished no  assistance,  although  the  person  was  without 
experience  and  the  brake  was  defective,  were  sufficient 
to  charge  the  company  with  negligence.  The  servant 
was  not  required  to  move  both  cars  together,  and  could 
uncouple  them  and  the  company  could  not  say  that  these 
acts  were  unauthorized,  because  he  had  full  charge  of 
the  cars  for  the  purpose  of  filling  them.  The  fact  that 
the  servant  was  in  the  employ  of  the  oil  company  would 
not  defeat  a  recovery,  because  the  servant  of  the  oil  com- 
pany while  filling  the  cars  would  be  regarded  as  a  ser- 
vant of  the  railroad  company,  as  far  as  third  persons 
were  concerned,1 

SEC.  15.  INJURIES  WHEN  PETROLEUM  is  STORED 
AT  A  RAILROAD  STATION  IN  VIOLATION  OF  A  STATUTE. — 
An  action  was  brought  against  a  railroad  company  for 
damages  which  were  the  result  of  a  fire  started  at  the 
station  of  a  railroad  company.  Thirty  barrels  of  oil  were 
stored  on  the  platform  of  the  company,  some  of  the  bar- 
rels were  empty,  some  partially  filled,  and  others  were 
entirely  full  of  kerosene  oil.  The  platform  was  old,  about 
four  feet  from  the  ground,  and  the  platform  and  rubbish 
and  ground  beneath  were  saturated  with  oil.  The  fire 
was  started  by  a  man  engaged  in  the  draying  business, 
and  who  stubbed  his  toe  and  knocked  some  tobacco  out 
of  his  pipe  and  he  relighted  the  pipe  with  a  match  and 
then  threw  the  lighted  match  down,  and  it  was  assumed 
that  the  fire  started  from  the  match.  The  oil  had  been 
on  the  platform  longer  than  forty-eight  hours,  although 
there  was  a  statute  which  provided  that  oil  composed 
wholly  or  in  part  of  the  products  of  petroleum  shall  not 
be  allowed  to  remain  on  the  grounds  of  a  railroad  com- 
pany in  a  town  for  a  longer  time  than  forty-eight  hours, 
without  a  special  permit  from  the  select  men.  No  per- 
mit was  given  to  keep  the  oil  longer  than  forty- eight 
hours  in  the  town.  The  court  assumed  that  the  company 
was  at  fault  in  keeping  the  oil  there  for  a  longer  time 

1.  Oil  Creek  &  Allegheny  River  Railroad  Co.  vs.  Keighorn,  74 
Pa.  St.,  316. 


Proximate  Cause  of  an  Injury.  395 

than  forty-eight  hours  and  that  the  accident  would  not 
be  so  disastrous  if  it  was  not  so  kept. 

The  teamster  who  started  the  fire  was  not  connected 
with  the  railroad  company  in  any  way,  but  came  upon 
the  grounds  with  a  load  of  goods,  and  he  had  a  right  to 
do  so  under  the  law,  so  the  railroad  company  was  not 
responsible  for  any  act  of  his.  The  first  question  de~ 
termined  by  the  court  was:  "Whether  the  act  of  Casserly 
(the  teamster)  in  starting  the  fire  was  such  a  consequence 
of  the  defendant's  original  wrong  in  allowing  the  oil  to 
remain  upon  the  platform,  that  the  defendant  is  respon- 
sible to  the  plaintiff  for  it."  The  court  would  not  look 
back  beyond  the  last  sufficient  cause  in  fixing  the  re- 
sponsibility for  the  damages,  and  the  acts  of  the  teamster 
in  starting  the  fire  was  held  to  be  the  proximate  cause 
of  the  injury,  because  the  defendant  could  not  anticipate 
that  a  responsible  person  would  throw  a  lighted  match 
in  the  place  he  did  and  start  the  fire.  The  court  held 
that  there  was  no  question  of  fact  in  the  case  to  be  sub- 
mitted to  a  jury.  The  negligence  of  the  defendant  was 
held  not  to  be  concurrent  with  the  negligence  of  the 
teamster,  as  the  negligence  of  the  company  preceded 
that  of  the  teamster  and  was  an  existing  fact  when  his 
negligence  intervened. 

The  illegal  acts  on  the  part  of  the  defendant  were 
not  enough  to  hold  it  responsible  for  the  remote  conse- 
quences of  the  acts.  *  But  to  keep  an  article  for  a  longer 
time  at  a  place  contrary  to  an  ordinance  or  a  statute  has 
been  held  to  be  a  public  nuisance,  and  as  the  courts  have 
said:  "If  an  illegal  act  is  done,  the  party  doing  or  caus- 
ing the  act  to  be  done  is  responsible  for  all  consequences 
resulting  from  the  acts."  Under  this  rule  the  railroad 
company  would  be  held  liable  for  the  damages  caused 
by  the  oil.* 

1.  Stone  vs.  Boston  &  H.  Ry.,  171  Mass.,  536;  41  L.  B.  A.,  794; 

51  N.E.,  1. 

2.  Laflin  &  B.  Powder  Co.  vs.  Tearney,  131  111.,  322;  7  L.  B.  A., 

262;  Wright  vs.  Chicago  &  N.  W  By.  Co.,  27  111.  App.,  200. 


Nuisance  Created  by  Oil  and  Gas. 


CHAPTER  XXL 

SECTION  1.  DAMAGES  TO  OTHER  LANDS  RESULTING 
FROM  THE  DEVELOPMENT  OP  THE  LAND  ITSELF  AND  DAM- 
AGES RESULTING  FROM  THE  BUSINESS  CONDUCTED  ON 
THE  LAND. — An  owner  of  land  has  a  right  to  develop 
the  land  by  operating1  for  coal,  oil,  gas  or  iron;  and  if  in 
the  progress  of  his  development  of  the  land  an  injury 
occurs  to  the  land  of  another  owner  and  the  injury  is  not 
the  result  of  negligence,  no  action  can  be  maintained  for 
such  injuries.  Thus  where  an  owner  of  a  coal  mine  pumps 
water  from  the  mine  and  the  water  was  contaminated 
by  substances  in  the  mine  and  the  water  was  permitted 
to  flow  away  in  its  natural  course  to  the  sea,  any  injury 
which  the  contaminated  water  might  do  would  not  make 
the  owner  of  the  mine  liable  because  the  land  of  the 
owner  was  coal  lands  and  it  was  necessary  to  free  the 
mine  from  water  to  develop  it,  hence  the  injury  resulted 
from  the  natural  development  of  the  land  and  no  action 
would  lie.=  But  a  person  is  not  engaged  in  the  natural 
development  of  his  land  when  he  conducts  petroleum 
through  pipes  and  the  petroleum  escapes  and  penetrates 
the  soil  and  finds  its  way  to  the  well  of  a  neighbor  and 
pollutes  the  water  therein  and  the  oil  which  thus  escaped 
was  brought  from  distant  lands.2  So  an  operator  of  coke 
ovens  is  liable  for  damages  done  to  the  crops  of  an  ad- 
joining owner  destroyed  by  gases  from  coke  ovens  if  the 
coal  which  was  used  was  brought  from  other  lands  be- 
cause the  burning  of  the  coke  is  not  a  development  of 
the  lands.8 

1.  Pennsylvania  Coal  Co.  vs.  Sanderson,  113  Pa.,  126;  6  Atl.,  453. 

2.  Hauck  vs.  Tide  Water  Pipe  Line  Co. ,  153  Pa. ,  26 ;  366  Atl. ,  644 ; 

20  L.  R.  A.,  642. 

3.  Robb vs.Carnegie Bros.,  145 Pa.,324;22Atl.,649;14L.R.A.,329. 


Nuisance.  397 

SEC.  2.  WHEN  DAMAGES  RESULT  FROM  THE  USE  OF 
LAND  IN  A  CERTAIN  WAY  THE  QUESTION  is  ONE  OP 
NUISANCE. — A  person  who  stores  oil  in  pipes,  tanks 
and  reservoirs  is  guilty  of  maintaining-  a  nuisance  if  the 
oil  escapes  and  does  injury  to  the  lands  of  an  adjoin- 
ing owner  without  any  regard  as  to  whether  he  was 
guilty  of  negligence  or  not.1  Some  things  are  nuisance's 
per  se  while  others  may  become  so  only  in  fact.  A  nui- 
sance per  se  is  that  which  is  a  nuisance  in  itself  and 
which  therefore  cannot  be  conducted  or  maintained  as  to 
be  lawfully  carried  on  or  permitted  to  exist.  A  business 
lawful  in  itself  cannot  be  a  nuisance  per  se  although  such 
a  business  may  become  a  nuisance  in  fact. 2  Thus  an  oil 
well  from  which  oil  was  taken  at  the  time  became  a  nui- 
sance in  fact  when  the  well  was  located  a  short  distance 
from  the  residence  of  a  person  and  his  family  and  the 
gas  escaped  from  the  well  and  permeated  the  air  about 
the  residence  and  the  fire  used  at  the  house  had  to  be  put 
out  at  times  because  of  the  danger  from  an  explosion  of 
gas  and  a  tank  of  oil  from  the  well  stored  within  80 
feet  of  the  residence.3  When  the  oil  or  gases  from  the 
oven  escape  and  invade  the  premises  of  another  the 
owner  is  liable  even  though  he  used  due  care  when  the 
use  made  of  the  land  was  not  a  natural  development  of 
the  land.4 

SEC.  3.  DAMAGES  RESULTING  FROM  THE  ESCAPE  OF 
OIL  BECAUSE  OF  THE  POLLUTION  OF  THE  ATMOSPHERE. 
— Slight  evidence  is  sufficient  to  make  out  a  case  for  sub- 
mission of  the  question  of  damages  to  a  jury.  Thus  evi- 
dence that  an  oil  company  spilled  some  oil  on  its  own 
premises  and  a  residence  was  located  on  an  adjoining  lot 
and  when  the  wind  blew  from  the  direction  of  the  premises 

1.  Hauck  vs.  Tide  Water  Pipe  Line  Co.,  153  Pa.,  366;  26  Atl., 

644;  20  L.  R.  A.,  642. 

2.  Windfall  Mfct.  Co.  vs.  Patterson,  148  Ind.,  414;  47  N.  E.,  2; 

37  L.  R.  A.,  381;  McGregor  vs.  Camden,  47  W.  Va.,    193; 
34  S.  E.,936. 

3.  McGregor  vs.  Camden,  47  W.  Va.,  193;  34  S.  E.,  936. 

4.  Hauck  vs,  Tide  Water  Pipe  Line  Co.,  153  Pa.,  366;  26  Atl.,  644; 

20  L.  R.  A.,  642. 


398  Pollution  of  Streams  and  Wells. 

of  the  oil  company  toward  the  residence  the  occupant 
and  his  family  suffered  some  in  consequence  is  sufficient 
to  go  to  the  jury.  *  The  fact  that  an  oil  refining  company 
is  carrying"  on  a  lawful  business  is  no  defense  to  a  suit 
by  an  owner  of  a  house  in  which  the  owner  and  his  family 
reside  where  the  owner  charged  the  refining-  company 
with  maintaining  a  nuisance  by  permitting1  the  waste 
oil  to  escape  into  the  ground  which  found  its  way  into 
ditches  and  sewer  and  some  of  the  oil  saturated  the 
ground  near  his  residence  and  that  the  stench  and 
smells  were  so  strong1  and  offensive  that  he  and  his  fam- 
ily were  made  sick  and  that  he  was  deprived  of  the  full 
use  and  enjoyment  of  his  residence.  The  question  of 
nuisance  or  no  nuisance  must  be  submitted  to  a  jury  where 
the  party  charged  of  maintaining  a  nuisance  denies  the 
commission  of  the  acts.2  If  the  value  of  the  premises  was 
decreased  because  oil  was  permitted  to  escape  from  the 
premises  of  another  and  the  owner  of  the  premises  suf- 
fered from  the  noxious  gases  and  physical  discomforts 
the  owner  of  the  oil  must  compensate  him  not  only  for 
the  damages  to  the  land  but  also  for  any  discomforts 
brought  about  by  the  escape  of  the  oil;3  and  must  com- 
pensate a  person  for  damages  to  his  business4  but  where 
the  loss  is  to  one's  business  there  must  be  evidence  to 
show  of  what  the  loss  consisted.5  An  owner  of  oil  is 
also  liable  for  the  pollution  of  a  spring  of  water  which 
had  been  used  for  domestic  purposes  even  though  the 
veins  which  supply  the  spring1  are  hidden  and  unknown. 
If  the  owner  of  the  oil  owned  the  premises  through  which 
the  water  which  supplied  the  well  flowed  he  could  ap- 
propriate all  the  water  to  his  own  use  but  such  an  owner 
has  no  right  to  poison  or  contaminate  the  water  which 
he  does  not  use  and  which  finds  its  way  to  the  spring  of 

1.  Fishburn  vs.  Standard  Oil  Co.,  66  MinD.,  277;  68  N.  W.,  1090. 

2.  Gavigan  vs.  Atlantic  Ref.  Co.,  186  Pa.,  604;  40  Atl.,  834. 

3.  Berger  vs.  Minneapolis  Gas  Light  Co.,  60  Minn.,  296;  62  N. 

W.,336. 

4.  Brady  vs.  Detroit  Steel  Spring  Co.,  102  Mich.,  277;   60  N.  W., 

687;  26  L.  R.  A.,  175. 

5.  Matthews  vs.  Mahonay,  143  Pa.,  276;  22  Atl.,  759. 


Injunction  to  Prevent  a  Nuisance.  399 

a  neighbor.  The  owner  of  the  oil  is  liable  in  such  a  case 
although  he  did  not  know  that  it  injured  the  well  of  his 
neighbor.1  But  it  was  held  in  Dillon  v.  Acme  Oil  Co.,  49 
Hun,  565,  that  an  oil  refining  company  was  not  liable  for 
the  oil  which  escaped  from  tanks  into  the  ground  and 
the  oil  found  its  way  to  the  wells  of  an  adjoining  land 
owner  and  rendered  them  unfit  for  domestic  use  because 
the  oil  company  was  using  its  land  for  legitimate  pur- 
poses or  the  oil  company  could  appropriate  the  streams 
which  flowed  through  its  land  and  thus  destroy  the  wells 
on  the  adjoining  land  in  that  way  and  no  recovery  could 
be  had. 

SEC.  4.  INJUNCTION  TO  PREVENT  THE  CONSTRUC- 
TION AND  OPERATION  OF  OIL  AND  GAS  WELLS. — A  com- 
plaint to  prevent  the  sinking  of  a  gas  well  which  alleges 
that  a  certain  party  had  commenced  boring  a  gas  well 
and  the  gas  well  was  within  150  feet  of  the  residence  of 
the  complainant,  and  that  the  well  when  completed  would 
make  a  roaring  and  continuous  loud  noise,  and  such  noise 
would  annoy  the  complainant,  and  that  gas  was  explos- 
ive and  dangerous,  and  that  the  pipe  for  the  conveyance 
of  gas  would  leak  and  the  gas  thus  escaping  would  make 
the  atmosphere  disagreeable  and  dangerous  because  of 
explosions,  and  the  gas  was  to  be  conveyed  at  rock  pres- 
sure, and  the  gas  attacted  the  electric  fluid  called  light- 
ning, and  that  the  construction  of  the  gas  well  would 
endanger  his  property  as  well  as  the  lives  of  the  com- 
plainant and  his  family,  and  further  that  the  well  might 
produce  oil,  gas  or  water,  and  the  person  drilling  it  could 
not  control  it,  was  held  to  be  insufficient.  No  danger 
was  to  be  apprehended  from  the  construction  of  the  well 
and  if  any  danger  was  to  be  apprehended  it  was  from  the 
gas,  oil  or  water  which  might  come  from  the  well,  there- 
fore the  danger  was  not  so  imminent  as  to  warrant  a  re- 
straining order  from  the  construction  of  a  gas  well.  In 
any  event  a  gas,  oil  or  water  well  is  not  a  nuisance  per  se 
or  the  pipes  for  the  conveyance  of  oil,  gas  or  water,  nor 

1.  Kennard  vs.  Standard  Oil  Co.,  89  Ky.,  468;  12  S.  W.,  937;  7 
L.  R.  A.,  451. 


400  Nuisance  Created  by  Gas  Works. 

are  a  gas  well  and  the  pipes  for  the  conveyance  of  gas 
and  a  brick  and  tile  factory  in  which  the  gas  is  used  a 
nuisance  per  se,  but  on  the  contrary  the  business  is  law- 
ful, and  if  located  in  the  proper  place  and  conducted  and 
maintained  in  a  proper  manner,  neither  the  plant  or  the 
well  can  be  treated  as  a  nuisance.  Courts  will  not  inter- 
fere with  an  individual  to  produce  on  his  land  what  he 
pleases  unless  injuries  to  another  person  are  inevitable 
and  are  undoubted  and  certain  to  occur.  Possible  in j  uries 
are  not  sufficient  grounds.1  An  oil  well  located  about  70 
feet  from  a  residence  and  a  tank  of  oil  about  80  feet  are 
not  a  nuisance  per  se,  but  if  gas  is  permitted  to  escape 
and  fill  the  atmosphere  about  the  residence  so  the  domes- 
tic fires  must  be  put  out  at  times  to  prevent  explosions, 
the  well  will  become  a  nuisance  in  fact  and  such  a  mode 
of  operating  the  well  will  be  enjoined.2 

SEC.  5.  NUISANCE  ARISING  FROM  THE  OPERATION 
OF  GAS  WORKS. — Smells,  smoke  and  soot  caused  by  the 
manufacture  of  gas  come  properly  under  the  denomina- 
tion of  a  private  nuisance  where  such  smells,  smoke  and 
soot  permeate  the  atmosphere  which  floats  over  the 
premises  of  another.3  So  where  a  person  maintains  on 
his  premises  a  brick  kiln,  and  in  the  manufacture  of  the 
brick  certain  gases  are  produced,  and  the  gases  there 
produced  killed  the  grain  growing  in  a  near  by  field,  the 
gases  thus  produced  amount  to  a  private  nuisance,  and 
the  person  who  is  responsible  for  their  production  may 
be  held  liable  for  the  grain  destroyed.4  A  person  engaged 
in  the  manufacture  of  coke  from  coal  which  was  brought 
from  a  distance  will  be  held  liable  for  damages  caused 
by  the  gas  passing  over  the  lands  of  an  adjoining  owner, 
thus  rendering  his  place  uncomfortable  as  a  home  and 

1.  Windfall  Mfct.  Co.  vs.  Patterson,  148  Ind.,  414;  47  N.  E.,  2; 

36  L.  R.  A.,  381. 

2.  McGregor  vs.  Camden,  47  W.  Va.,  193;  34  S.  E.,  936. 

1.  Ottawa  Gas  Light  &  Coke  Co.  vs.  Thompson,  39  111.,  598. 

2.  Fogarty  vs.  Junction  City  Pressed  Brick  Co.,  50  Kan.,  478;  31 

Pac.,  1152;  18  L.  R.  A.,  756;  Campbell  vs.  Seaman,  63  N. 
Y.,568;  20  Am.  Rep.,  567. 


Action  Against  Chartered  Gas  Companies.  401 

rendering-  the  farm  less  productive.  *  It  amounts  to  a  pri- 
vate nuisance  where  a  gas  company  permits  offensive 
substances  and  materials  and  oils  to  percolate  through 
the  soil  and  find  their  way  to  the  well  of  an  adjoining 
land  owner  and  render  the  water  unfit  for  domestic  pur- 
poses. 2  And  the  owner  of  the  gas  works  will  be  liable 
for  damages  sustained  by  the  owner  of  the  well,8  and  a 
person  who  has  a  verbal  license  to  take  water  from  the 
well  can  maintain  an  action  for  a  disturbance  of  his  ease- 
ment, but  not  for  the  distruction  of  the  well. 4  A  gas  com- 
pany is  also  liable  where  a  tank  for  the  storage  of  naph- 
tha is  erected  near  the  residence  of  a  person  and  the 
naphtha  contained  in  the  tank  gives  off  offensive  odors 
and  makes  the  place  uncomfortable  as  a  home.6  A  gas 
company  which  maintains  a  nuisance  need  not  be  guilty 
of  negligence  in  order  to  maintain  an  action  against  it, 
but  will  be  liable  for  damages  if  it  maintains  a  nuisance 
without  regard  to  care  or  negligence  on  its  part.  Nor 
will  the  charter  it  receives  from  the  state  release  it  from 
liability  to  a  third  person.  The  charter  will  only  protect 
the  gas  company  from  being  proceeded  against  by  the 
public.6 

1.  Robb  vs.  Carnegie,  145  Pa.,  324;  22  Atl.,  649;  14  L.  E.  A.,  644; 

2.  Ottawa  Gas  Light  Co.  vs.  Thompson,  39  111.,  598;  Pattstown 

Gas  Co.  vs.  Murphy,  39  Pa.,  257. 

3.  Pattstown  Gas  Co.  vs.  Murphy,  39  Pa.,  257. 

4.  Ottawa  Gas  Light  Co.  vs.  Thompson,  39  111.,  598. 

5.  Bohan  vs.  Port  Jarvis  Gas  Co.,  122  N.  Y.,  18;  25  N.  E.,  246; 

9L.  R.  A..711  and  note. 

6.  Pattstown  Gas  Co.  vs.  Murphy,  39  Pa.,  257;  Bohan  vs.  Port 

Jarvis  Gas  Co.,  122  N.  Y.,  18;  25  N.  E.,  246  9;  L.  R.  A., 
711;  Rosenheimer  vs.  Standard  Gas  Light  Co.,  36  App. 
Div.  1;  People  vs.  New  York  Gas  Light  Co.,  64  Barb.,  55; 
Pattstown  Gas  Co.  vs.  Murphy,  39  Pa.,  257. 


Use  of  Oil  and  Gas  Affecting  Insurance. 


CHAPTER  XXII. 

SECTION  1.  LIABILITY  OF  ACCIDENT  INSURANCE  FOR 
DEATH  CAUSED  BY  INHALING  GAS— NEW  YORK  CASES.  — 
An  accident  insurance  company  was  held  liable  for  death 
caused  by  the  involuntary  inhalation  of  gas  while  asleep 
under  the  following  provision  of  a  policy,  to- wit:  "The 
person  insured  is  indemnified  'against  loss  of  time,  not 
exceeding  twenty-six  consecutive  weeks,  from  the  hap- 
pening of  such  accident  and  injury  as  shall  independently 
of  all  other  causes,  immediately  and  wholly  disable  and 
prevent  him  from  the  prosecution  of  any  and  every  kind 
of  business  by  reason  of  bodily  injuries,  through  external, 
violent  and  accidental  means;  or,  in  the  event  of  death, 
occasioned  by  bodily  injuries  received  as  aforesaid  when 
resulting  within  ninety  days  from  the  happening  thereof 
and  in  such  event  will  pay  only  the  sum  of  $3,000,  provided 
always  that  the  insurance  shall  not  extend  to  any  bodily 
injury  of  which  there  shall  be  no  external  and  visible 
sign  upon  the  body  of  the  insured,  nor  to  death  or  dis- 
ability which  may  have  been  caused  *  *  *  by 
hernia,  bodily  infirmities  *  *  *  nor  by  the  taking  of 
poison,  contact  with  poisonous  substances,  or  of  inhal- 
ing of  gas  or  by  any  surgical  operations,  or  medical 
treatment,  nor  to  any  case  except  where  the  injury"  is 
the  proximate  and  sole  cause  of  the  disability  or  death. J 

The  death  occurred  in  the  decedent's  sleeping  apart- 
ments and  the  decedent  was  found  in  his  bed  like  a  man 
asleep  without  any  outward  signs  or  indications  that  he 
was  dead,  and  without  any  external  or  visible  signs  of 
injury  to  his  body.  The  accident  occurred  at  a  hotel  and 

1.  Paul  vs.  Travelers  Insurance  Co.,  112  N.  Y.,  472;  20  N.  E.,  347; 
3  L.  R.  A.,  443;  Catlin  vs.  Springfield  Fire  Ins.  Co.,  1  Sum- 
mer, 440. 


Accident  Insurance.  403 

the  cause  of  the  accident  was  that  the  gas  became  turned 
on  after  the  decedent  went  to  sleep,  and  the  room,  which 
was  tightly  closed,  became  filled  with  the  illuminating 
gas  and  the  death  was  caused  by  breathing  the  atmos- 
phere of  the  room  full  of  illuminating  gas.  The  insur- 
ance company  refused  to  pay  the  policy  on  the  ground 
that  death  resulting  from  inhaling  illuminating  gas  was 
excepted  under  the  provision  of  the  policy,  and  thus  re- 
lieved the  company  from  liability. 

The  court  held  that  the  policy  must  be  construed 
liberally  in  favor  of  the  person  insured  and  strictly 
against  the  insurer. 

That  the  person  insured  came  to  his  death  by  acci- 
dental means  and  was  within  the  terms  of  the  policy.  And 
the  provision  in  the  policy  which  excepted  the  company 
from  liability  unless  visible  signs  on  the  body  of  the  in- 
sured appeared,  applied  and  referred  only  to  that  part  of 
the  policy  which  provided  for  the  payment  of  loss  when 
death  did  not  occur.  When  the  insured  was  injured  from 
breathing  gas  involuntarily,  the  company  was  not  released 
from  the  payment  of  the  loss,  and  the  company  would  be 
relieved  only  when  the  insured  voluntarily  inhaled  the 
gas.  The  insured  was  held  not  to  inhale  the  gas,  for  to 
inhale  gas  requires  an  act  of  volition  on  the  person'.s  part 
before  the  danger  is  incurred,  and  "to  hold  that  death  of 
the  plaintiff's  intestate  was  caused  by  the  inhaling  of 
gas,  within  the  meaning  of  the  policy,  would  be  to  con- 
strue its  terms  contrary  to  the  usual  import  of  language." 
'  'Gas  in  the  atmosphere  as  an  external  cause,  was  a  vio- 
lent agency,  in  the  sense  that  it  worked  upon  the  intes- 
tate so  as  to  cause  his  death. "  It  was  said  by  the  lower 
court:  "Was  the  death  of  the  intestate  caused  by  or 
through  external  violent  or  accidental  means  within  the 
language  of  the  policy.  *  *  *  We  should  say  the 
death  was  due  to  external  and  violent  means  as  clearly  as 
drowning1.  The  cause  of  death  came  from  outside  a s  surely 
as  would  a  rifle  ball  or  water  in  the  case  of  drowning." 

The  escape  of  gas  into  a  room  was  violent  in  the 
same  sense  that  would  be  the  flow  of  water  into  a  wrecked 


404  When  Not  Exempt. 

vessel.  In  each  case  the  external  means  constitute  the 
cause  which  produces  death.  It  is  a  violent  death,  pro- 
duced by  external  power,  not  natural.1  So  a  policy 
which  provided  as  follows:  "This  policy  does  not  in- 
sure against  death  or  disablement  from  accidents,  that 
bear  no  external  and  visible  marks  *  *  *  nor  against 
death  or  disablement  arising  from  anything  accidentally 
taken,  administered  or  inhaled,  contact  of  poisonous  sub- 
stance, inhaling  gas,  or  any  surgical  operation  or  ex- 
haustion consequent  thereof,"  does  not  relieve  the  acci- 
dent insurance  company  for  death  caused  by  breathing 
the  air  permeated  with  gas  by  a  person  while  asleep. 
The  admitted  facts  were  practically  as  they  were  in  the 
Paul  case,  and  that  the  death  of  the  decedent  was  caused 
purely  by  accidental  means  so  the  provision  in  the  pol- 
icy applied  only  to  cases  when  gas  was  voluntarily  taken. 
The  court  said:  "That  provision  of  the  policy  clearly 
implies  voluntary  action  on  the  part  of  the  insured  or 
some  other  person.  The  insured  must  take  and  inhale 
and  another  must  administer.  The  manifest  purpose  of 
the  provision  is  to  exempt  the  insurer  from  liability 
where  the  insured  has  voluntarily  and  conscientiously 
but  accidentally,  taken  or  inhaled  or  something  has  been 
voluntarily  administered  which  was  injurious  or  destruct- 
ive to  life.  That  is  made  more  apparent  by  that  portion 
of  the  provision  which  relates  to  something  'adminis- 
tered,' as  it  cannot  be  reasonably  construed  as  referring 
to  a  thing  involuntarily  and  conscientiously  adminis- 
tered. " 

The  fact  that  the  decedent  met  death  by  breathing 
illuminating  gas,  and  that  when  artificial  respiration 
was  produced,  illuminating  gas  emanated  therefrom  to 
the  perception  of  the  person  producing  the  artificial  res- 
piration, and  that  in  the  room  where  the  decedent  lay 
dead  gas  was  perceived  to  be  escaping,  and  that  on  in- 
spection of  the  body  life  was  extinct,  were  sufficient  evi- 
dence of  an  external  and  visible  character,  so  that  the 
company  was  not  exempt  under  the  provision  of  the 

1.  Paul  vs.  Travelers  Ins.  Co.,  45  Hun.,  313. 


Inhalation  of  Gas.  405 

policy  that  the  company  did  not  insure  against  death  or 
disablement  from  accidents  that  shall  bear  no  external 
and  visible  works. '  The  doctrine  in  the  Paul  case  has  been 
approved  in  other  cases  in  the  same  state. 8 

SEC.  2.  LIABILITY  OF  ACCIDENT  INSURANCE  COM- 
PANY FOR  INJURY  CAUSED  BY  INHALING  GAS — PENNSYL,^ 
VANIA  DOCTRINE. — Where  an  accident  insurance  company 
issued  a  policy  for  the  sum  of  $5,000  and  the  policy  pro- 
vided that  the  company  would  pay  to  the  legal  repre- 
sentatives the  said  sum  after  due  notice  and  satisfactory 
proof  that  the  insured  has  during  the  continuance  of  the 
policy,  sustained  such  violent  and  accidental  injuries  as 
shall  externally  be  visible  upon  his  person,  and  which 
alone  shall  have  caused  his  death;  and  on  the  back  of 
the  policy  and  which  was  a  part  of  it  there  were  the  fol- 
lowing provisions:  "The  insured  agrees  to  use  due  dili- 
gence for  personal  safety  and  protection."  "This  insur- 
ance shall  not  cover  *  *  *  injury  resulting  from  or 
attributable  partially  or  wholly  to  any  of  the  following 
causes:  *  *  *  "taking  of  poison,  contact  with  poison- 
ous substance,  inhalation  of  gas,"  *  *  *  the  insurance 
company  was  liable  under  the  terms  of  the  policy  for  the 
accidental  death  of  the  insured  resulting  from  the  inhala- 
tion of  gas.  It  appeared  in  that  case  that  the  insured 
went  into  a  well  about  twelve  feet  deep  to  repair  a  pump 
which  had  been  leaking  and  shortly  after  he  went  into 
the  well  his  lifeless  body  was  found  in  the  well.  The  sur- 
face of  his  body  presented  a  livid,  bluish  color,  and  there 
were  many  other  indications  on  his  body  that  he  met 
death  by  suffocation.  There  was  no  dispute  but  that 
there  was  gas  in  the  well  and  that  it  caused  the  deced- 
ent's death  for  others  who  removed  the  body  from  the 
well  almost  met  his  fate.  On  these  undisputed  facts  the 
court  directed  a  verdict  for  the  plaintiff.  The  insurance 
company  insisted  that  it  was  not  liable  for  death  caused 

1.  Mennerlley  vs.  Employers  Liability  Assn.  Corp.,  148  N.  Y., 

596;  43  N.E.,  54;  31  L.E.A.,  686. 

2.  Bacon  vs.  United  States  Mut.  Ace.  Assn.,  123  N.Y.,  304;  25 

N.E.,399;9L.R.A.,  617. 


406  Accidental  Death. 

by  inhalation  of  gas,  but  the  court  held  that  his  death 
was  accidental  and  "was  caused  by  external,  violent  and 
accidntal  means  and  without  any  conscious  or  voluntary 
act  on  his  part,"  and  was  "as  much  so  as  if  he  had 
been  suddenly  and  unexpectedly  engulfed  in  water  and 
drowned.  The  deadly  but  invisible  gas  by  which  he  was 
unconsciously  and  accidentally  enveloped  was  undoubt- 
edly the  external  and  violent  cause  of  his  injury  and 
death,"  and  the  effect  of  the  gas  was  apparent  on  his 
vital  organs  and  body.  "The  deceased  was  accidentally, 
violently  and  fatally  asphyxiated  by  the  unknown  pres- 
ence of  a  fluid  foreign  to  his  person.  If  that  fluid  had 
been  oil,  smoke,  water  or  molten  metal  the  result  would 
have  been  substantially  the  same.  Death,  caused  not  so 
much  by  the  inhalation  of  the  fluid  as  by  its  action  in 
excluding  life  supporting  air,  would  have  inevitably  re- 
sulted. A  fair  construction  of  the  policy  leads  to  the 
conclusion  reached  by  the  court  below,  that  death  result- 
ing from  causes  such  as  killed  the  intestate  is  not  within 
any  of  the  exceptions  relied  on  by  the  company."1  The 
doctrine  of  the  Paul  case  was  approved  and  followed.  * 

SEC.  3.  LIABILITY  OF  ACCIDENT  INSURANCE  COM- 
PANIES CAUSED  BY  THE  INHALATION  OF  GAS— ILLINOIS 
DOCTRINE — ALSO  VIRGINIA. — An  accident  insurance  com- 
pany was  held  liable  on  a  policy  of  insurance  which  pro- 
vided: "This  insurance  does  not  cover  *  *  *  injuries, 
fatal  or  otherwise,  resulting  from  poison,  or  anything 
accidentally  or  otherwise  taken,  administered,  absorbed 
or  inhaled,"  where  the  person  insured  met  death  in  his 
sleeping  apartments  in  a  hotel  and  death  was  caused  by 
breathing  illuminating  gas  into  his  lungs  and  the  gas 
escaped  by  reason  of  defective  fixtures.  By  such  a  clause 
the  company  was  exempt  from  liability,  only  in  case 
where  the  person  comes  to  his  death  by  the  voluntary 
inhalation  of  the  gas.  The  cases  in  New  York  and  Penn- 
sylvania were  referred  to  and  approved  and  that  the  ad- 

1.  Pickett  vs.  Pacific  Mutual  Life  Ins.  Co.,  144  Pa.  St.,  79-91;  22 

Atl.  871. 

2.  Paul  vs.  Travelers  Ins.  Co.,  112  N.  Y.,  472. 


Doctrine  of  the  Federal  Courts.  407 

ditional  word  "absorbed"  in  the  policy  in  question  had 
no  application  because  since  the  word  had  reference  to 
something  taken  in  through  the  pores  of  the  body.  The 
words  ''inhaling"  or  "inhalation"  or  "inhaled"  as  used 
in  the  exceptions  contained  in  these  policies  of  life  and 
accident  insurance  implies  a  voluntary  and  an  intelligent 
act.  "Read  in  the  light  of  the  decision  the  words  now~ 
in  question  do  not  mean  otherwise,"  said  the  court,  "than 
if  they  explicitly  read:  poison  or  anything  accidentally 
or  otherwise  conscientiously  and  by  an  act  of  volition 
drawn  into  the  system  by  respiration."1 

So  in  Virginia,  where  the  policy  contained  similar 
provisions  and  the  insured  met  death  by  the  inhalation 
of  gas,  the  policy  was  construed  strictly  against  the  in- 
surer and  in  favor  of  the  insured;  and  when  the  policy 
required  that  visible  marks  should  be  on  the  body  to 
make  the  company  liable  it  was  a  question  of  fact  for 
the  jury  to  say  whether  blood  on  different  parts  of  the 
body  and  red  spots  appearing  on  the  surface  of  the  body 
and  froth  from  the  mouth  mixed  with  blood  were  sufficient 
visible  marks  as  required  by  the  policy.2 

SEC.  4.  LIABILITY  OP  ACCIDENT  INSURANCE  COM- 
PANIES FOR  DEATH  CAUSED  BY  INHALING  GAS— DOC- 
TRINE OF  THE  FEDERAL  COURTS. — An  accident  insurance 
company  is  not  exempt  from  the  payment  of  a  loss  caused 
by  inhaling  illuminating  gas  under  a  provision  of  a  pol- 
icy: "This  insurance  does  not  cover  *  *  *  injuries 
fatal  or  otherwise  resulting  from  poison  or  anything  ac- 
dentally,  or  otherwise  taken,  administered  or  inhaled." 
The  liability  of  the  company  was  not  placed  on  the 
ground  that  the  company  was  strictly  liable  under  the 
terms  of  the  policy  but  that  the  courts  of  New  York  in 
the  Paul  case  and  the  Mennerley  case  and  the  courts  of  Illi- 
nois in  the  Waterman  case  and  Pennsylvania  in  the  Pickett 
case  placed  a  construction  on  policies  which  were  the 

1.  Fidelity  &  Casualty  Co.  vs.  Waterman,  161  111.,  632;  32  L.R. A.. 

654. 

2.  United  States  Mut.  Ace.  Assn.  vs.  Newman,  84  Va.,52;  3  S.E., 

805. 


408  Loss  Caused  by  Oil  and  Gasoline. 

same  or  almost  alike  and  found  against  the  insurance 
companies  on  similar  facts  and  that  the  findings  of  these 
courts  at  least  placed  a  doubt  as  to  the  true  construction 
of  these  provisions,  and  when  the  true  construction  or 
meaning  of  the  provision  of  the  policy  is  in  doubt  it  must 
be  resolved  in  favor  of  the  person  insured."  The  above 
case  was  passed  upon  by  the  U.S.  Court  of  Appeals  which 
affirmed  a  decision  of  the  lower  court. l 

Other  Federal  Courts  have  placed  a  different  con- 
struction on  this  exemption.  Thus: 

Where  a  policy  of  insurance  contained  a  provision 
like  that  in  the  Paul  case  and  the  insured  met  death  by 
inhaling  gas  while  asleep  in  his  room  and  the  inhalation 
was  purely  accidental,  the  insurance  company  was  held 
not  liable,  under  the  provisions  of  the  policy.  *  In  speak- 
ing of  the  cases  arising  in  the  courts  of  New  York,  Penn- 
sylvania and  Illinois  heretofore  cited  the  Supreme  Court 
of  Wisconsin  said:  "Numerous  cases  may  be  found  to 
the  effect  that  the  clause  excepting  death  caused  by  in- 
haling gas,  accidentally  or  otherwise,  only  covers  cases 
of  voluntary  conscious  inhalation.  *  *  *  The  rule 
itself  is  by  no  means  free  from  criticism,  nor  has  it  passed 
without  criticism  from  respectable  courts."  The  Court 
then  referred  to  the  last  case  above  cited. a 

SEC.  5.  KEEPING  PETROLEUM  AND  ITS  PRODUCTS 
ON  PREMISES  CONTRARY  TO  THE  TERMS  OF  THE  POLICY. 
— An  insurance  company  is  not  liable  for  a  loss  to  prop- 
erty caused  by  the  use  of  gasoline  on  the  premises  in- 
sured where  the  policy  forbids  the  use  of  gasoline  on  the 
premises.4  So  when  a  tenant  keeps  naphtha  on  the  prem- 
ises and  damages  result  from  the  keeping  of  the  naphtha, 
the  landlord  cannot  recover  on  a  policy  of  insurance  held 

1.  Fidelity  &  C.  Co.  vs.  Lowenstein,  97  Fed.  R.,  17;  Lowenstein 

vs.  Fidelity  C.  Co.,  88  Fed.  R.,  474. 

2.  Richardson  vs.  Travelers  Insurance  Co.,  46  Fed.  R.,  843. 

3.  Kosten  vs.  Interstate  Casualty  Co.,  99  Wis.,  73;  74  N.  W.,  534; 

40  L.  R.  A.,  651. 

4.  German  Fire  Insurance  Co.  vs.  Shawnee  Co.,  54  Kan.,  732;  39 

Pac.,697. 


Prohibition  Against  Keeping  on  the  Premises.        409 

by  him  on  the  premises.  *  And  where  a  policy  prohibits  the 
keeping*  of  gasoline  on  the  premises  and  the  gasoline  was 
put  temporarily  in  a  store  to  be  used  in  apartments  above 
the  store,  the  keeping  of  the  gasoline  in  the  store  will  avoid 
the  policy. 2  An  insurance  policy  which  provided  that  if 
the  risk  is  made  more  hazardous  the  policy  will  become 
void  is  avoided  by  the  insured  putting  up  a  frame  build- 
ing near  the  one  insured  and  in  the  building  an  incubator 
was  placed  and  the  incubator  was  kept  heated  by  the  use 
of  gasoline  or  kerosene  as  a  fuel.8  An  insurance  policy 
is  not  void  where  the  printed  portion  of  the  policy  pro- 
hibits the  use  of  benzine  and  gasoline  but  attached  to  the 
policy  is  a  slip  permitting  the  premises  to  be  used  and 
occupied  for  the  purpose  of  hazardous  and  extra  hazard- 
ous purposes.4  An  insurance  policy  is  avoided  which  per- 
mits the  use  of  kerosene  for  lights  but  stipulates  that 
the  lamps  must  be  filled  during  the  light  of  day  where 
a  lessee  draws  kerosene  from  the  place  where  kept  for 
the  purpose  of  loaning  it  to  a  third  person  and  an  ex- 
plosion took  place  and  the  property  was  destroyed.5 
A  policy  was  void  if  petroleum  or  its  products  were  kept 
on  the  premises,  but  provided:  "Privileged  to  use  kero- 
sene oil  for  lights,  lamps  to  be  filled  and  trimmed  by  day- 
light only",  the  words  "for  lights"  restricted  the  use 
of  kerosene  oil  for  the  purpose  of  lighting  the  prem- 
ises and  the  words  "by  day  light"  were  construed  to  pro- 
hibit the  use  of  artificial  lights  at  the  time  the  oil  was 
drawn.6  So  where  it  is  written  on  the  margin  of  the  pol- 
icy that  the  insured  may  keep  not  exceeding  five  barrels 
of  oil  on  the  insured  premises,  such  permit  does  not  ab- 
rogate a  printed  portion  of  the  policy  regulating  the 

1.  Badger  vs.  Platts,  68  N.  H.,  222;  44  Atl.,  296;  5  and  6  infra. 

2.  Boyer  vs.  Grand  Rapids  Fire  Ins.  Co.,  124  Mich.,  455;  83  N.W., 

124. 

3.  Yentzervs.  Farmers  Mut.  Ins.  Co.,  — Pa., — ;  49  Atl.,  767. 

4.  Russell  vs.  Manufacturers  &  B.  Fire  Ins.  Co.,  50  Minn.,  409; 

52  N.  W.,906. 

5.  Gunther  vs.  Liverpool  &  L.  &  G.  Ins.  Co.,  34  Fed.  R.,  501. 

6.  Gunther  vs.  Liverpool  &  L.  &  G.  Ins.  Co.,  134  U.  S.,  110;  116 

U.  S.,  130. 


410  What  Acts  Will  Not  Avoid  a  Policy. 

mode  of  handling"  the  oil. *  So  where  the  policy  provided 
that  the  policy  would  become  void  if  naphtha  was  used 
on  the  premises,  the  policy  becomes  void  upon  the  use 
of  naphtha.2  So  where  an  insurance  company  made  no 
inquiries  as  to  whether  gasoline  was  used  on  the  prem- 
ises at  the  time  the  policy  was  issued  an  explosion  of  a 
gasoline  stove  will  avoid  the  policy,  although  it  was  used 
at  the  time  the  policy  was  issued  when  the  policy  pro- 
hibits its  use. 3  An  insurance  policy  becomes  void  where 
the  insured  keeps  a  barrel  of  crude  petroleum  within  five 
or  six  feet  from  a  furnace  and  the  barrel  is  connected 
with  a  pipe  which  runs  to  the  furnace  and  the  crude  pe- 
troleum is  used  as  a  fuel  to  heat  a  boiler  and  the  policy 
provides  that  the  policy  will  be  void  if  petroleum  is  kept 
on  the  premises  even  if  the  petroleum  did  not  cause  the 
loss."4  So  where  there  is  a  provision  in  a  policy  of  in- 
surance prohibiting  the  bringing  or  depositing  of  gaso- 
line on  the  premises,  the  policy  becomes  void  where  the 
gasoline  is  used  in  the  house  where  the  goods  are  kept, 
although  the  tank  where  the  gasoline  is  kept  was  in  the 
barn. 5 

SEC.  6.  WHAT  ACTS  WILL,  NOT  AVOID  A  POLICY. — 
The  keeping  of  gasoline  some  distance  from  the  insured 
building  or  an  occasional  use  of  it  to  kill  bugs  will  not 
avoid  the  policy. 6  So  where  naphtha  was  used  in  a  woolen 
mill  and  its  use  was  necessary  in  the  business  and  had 
been  at  the  time  the  policy  was  issued,  a  continued  use 
of  naphtha  will  not  avoid  the  policy,  although  a  written 
portion  of  the  policy  so  provided  that  it  would  avoid  the 
policy  where  the  fire  was  not  occasioned  by  the  use  of 
naphtha.7  So  where  a  person  operated  a  laundry  and  used 

1.  Gunther  vs.  Liverpool  &  L.  &  G.  Ins.  Co.,  134  U.  S.,  110. 

2.  Wheeler  vs.  Travelers  Ins.  Co.,  62  N.  H.,  326-450. 

3.  McFarlandvs.  Fire  &  Marine  Ins.Co.,  46  Minn.,  519;  49  N.W., 

253. 

4.  White  vs.  Western  Assurance  Co.,  —  Pa.,  — ;  6  Atl.,  113. 

5.  Penn.  Ins.  Co.  vs.  Faires,  13  Civ.  App.,  Ill;  35  S.  W.,  55. 

6.  LaForce  vs.  Williams  City  Fire  Ins.  Co.,  43  Mo.  App.,  518. 

7.  Wheeler  vs.  Travelers  Ins.  Co.,  —  N.  H.,  — ;  1  Atl.,  293; 

Davis  vs.  Pioneer  Furniture  Co.,  102  Wis.,  394;  78  N.W.,  596. 


Insuring  the  Prohibited  Article.  411 

gasoline  in  the  operation,  the  insured  may  recover  on  a 
policy,  although  the  policy  prohibited  its  use  when  the 
custom  of  using  gasoline  was  general  at  the  place  the  pol- 
icy was  issued  and  the  proof  of  such  custom  is  not  barred 
because  the  policy  contains  a  provision  any  custom  of 
trade  or  manufacture  notwithstanding,  since  the  running^ 
or  operation  of  a  laundry  is  not  a  trade  or  manufacture.  * 
So  where  the  use  of  gasoline  was  prohibited  with  the 
added  clause:  "Any  usage  or  custom  of  trade  or  manu- 
facture to  the  contrary  notwithstanding,"  the  provision 
does  not  apply  where  gasoline  was  used  for  domestic 
purposes  and  the  insurance  covered  the  gasoline  stove.2 
So  where  the  written  description  as  it  appeared  in 
the  policy  was  as  follows:  "A  stock  of  merchandise, 
consisting  of  drugs,  stationery,  liquors,  tobaccos,  toys 
and  fancy  articles,  paints,  oils,  chemicals  and  such  other 
goods,  not  more  hazardous  than  such  as  is  usually  kept 
for  sale  in  a  drug  store;"  and  the  printed  portion  of  the 
policy  provided  that  the  policy  would  be  void  if  benzine 
was  kept  on  the  premises,  the  insurance  policy  was  held 
to  cover  small  quantities  of  benzine  kept  in  stock,  and 
was  covered  by  the  general  written  description,  hence 
the  keeping  of  benzine  did  not  make  the  policy  void.3 
Where  a  furniture  store  and  shop  was  insured  under  the 
description:  "Four  hundred  dollars  on  the  stock  of  fur- 
niture, upholstery  goods,  and  other  merchandise  not 
more  hazardous,  usual  to  a  retail  furniture  store,"  the 
policy  was  not  made  void  by  the  continued  use  of  benzine 
in  the  shop  where  benzine  was  generally  used  in  such 
stores  or  shops,  although  a  printed  portion  of  the  policy 
prohibited  its  use  with  the  added  phrase:  "Any  usage  or 
custom  of  trade  or  manufacture  to  the  contrary  notwith- 
standing."4 An  insurance  company  will  be  held  to  have 

1.  Northern  Ass.  Co.  vs.  Crawford,  (Tex.  Civ.  App.)  59  S.  W., 

916. 

2.  American  Ins.  Co.  vs.  Green,  16  Tex.  Civ.  App.,  531;  41  S.W., 

74. 

3.  Phoenix  Ins.  Co.  vs.  Flemming,  65  Ark.,  54;  44  S.  W.,  464; 

39  L.  R.  A.,  789. 

4.  Faust  vs.  American  Fire  Ins.  Co.,  91  Wis.,  158;  30  L.  R.  A.,  783. 


412  Loss  Not  Caused  by  the  Prohibited  Article. 

waived  the  printed  portion  of  the  policy  by  inserting1  a 
contrary  written  clause  in  the  policy. '  To  carry  gasoline 
through  a  store  to  be  delivered  to  customers  at  once  is 
not  keeping1  or  using"  gasoline  on  the  premises,2  nor  is  it 
kept  on  the  insured  premises  where  it  is  kept  in  a  sepa- 
rate building  but  on  the  same  lot.3 

SEC.  7.  WHEN  THE  Loss  is  NOT  CAUSED  BY  THE 
PROHIBITED  ARTICLE.  —Although  an  insurance  policy  pro- 
vided that  the  insurer  shall  not  be  liable  if  the  use  of  kero- 
sene is  permitted  on  the  premises  the  insurer  will  be 
liable  for  a  loss  when  the  loss  was  not  occasioned  by  the 
use  of  kerosene. 4  So  where  an  insurance  policy  provided 
that  "if  the  building  described  shall  be  appropriated  to 
any  other  purpose  than  herein  specified  *  *  *  or  the  risk 
increased  *  *  *  by  any  means  within  the  knowledge 
or  control  of  the  insured,  or  if  petroleum  or  any  of  its 
products  are  under  any  circumstances  in  the  building, 
*  *  *  this  policy  shall  become  absolutely  void,"  and 
the  buildings'  when  insured  consisted  of  a  dwelling  house 
and  barn  and  were  afterwards  converted  into  a  canning 
factory  by  the  insured,  and  a  tank  of  gasoline  was  buried 
in  the  ground  some  distance  from  the  buildings  and  gas 
was  generated  in  the  tank  and  passed  through  pipes  to 
to  the  building,  and  at  the  time  the  property  was  insured 
no  flame  or  jet  of  any  kind  was  used  in  the  barn,  but  the 
canning  factory  ceased  operation  at  the  time  the  buildings 
were  destroyed,  the  use  of  gasoline  was  held  not  to  avoid 
the  policy  and  the  policy  became  effective  again  when 
the  insured  discontinued  the  more  hazardous  use,  although 
the  policy  provided  that  it  would  become  absolutely  void 


1.  Phoenix  Ins.  Co.  vs.  Flemming,  65  Ark.,  54;  39  L.R.  A.,  789; 

Faust  vs.  American  Fire  Ins.  Co.,  91  Wis.,  158. 

2.  Landon  &  Lloyd  F.  Ins.  Co.  vs.  Fischer,  92  Fed  R.,  500. 

3.  Firemans  Fund  Ins.  Co.  vs.  Shearman,  20  Tex.  Civ.  A.,  343; 

50  S.  W.,  598;  Landon,  etc.  vs.  Fischer,  92  Fed.  R.,  500. 
LaForce  vs.  Williams  Ins.  Co.,  43  Mo.  App.,  518;  Ran  vs; 
Winchester  Fire  Ins.  Co.,  36  App.  Div.  (N.  Y.),  179. 

4.  Jones  vs.  Howard  Ins.  Co.,  117  N.  Y.,  103;  22  N.  E.,  578. 


Temporary  Breach.  413 

by  such  a  use.1  In  such  a  case  expert  testimony  is  ad- 
missible to  show  whether  the  risk  has  become  more  haz- 
ardous by  a  change  in  the  use  of  the  premises.2  The 
company  will  not  be  relieved  from  the  payment  of  a  loss 
for  a  temporary  breach  where  the  policy  does  not  become 
forfeited  by  its  own  terms  or  by  the  acts  of  the  company 
during-  such  breach  and  there  was  no  breach  of  the  policy 
at  the  time  of  the  fire.8  The  insurer  will  not  be  released 
by  the  temporary  use  of  benzine  when  used  to  renovate 
the  furniture  and  carpets,  although  the  risk  may  be  in- 
creased thereby  contrary  to  the  terms  of  the  policy.4 

So  where  insurance  policies  provided  that  in  case 
the  premises  shall  become  unoccupied  the  insurance  shall 
cease  and  be  void  and  of  no  force  and  effect,  and  the  in- 
sured left  the  premises  unoccupied  and  the  buildings 
while  so  unoccupied  were  destroyed  by  fire,  and  the  insur- 
ance companies  paid  the  losses  to  the  mortgagee  as  the 
policies  provided,  and  the  companies  then  took  an  as- 
signment of  the  notes  and  mortgage  and  filed  a  bill  in 
equity  to  foreclose  the  mortgage,  and  thereupon  the  in- 
sured brought  action  at  law  against  the  insurance  com- 
panies to  recover  the  loss  covered  by  the  insurance  and 
the  insurance  companies  had  the  insured  enjoined  from 
prosecuting  such  action  by  a  supplemental  bill,  and  the 
evidence  in  the  proceedings  to  foreclose  the  mortgage 
failed  to  show  that  the  property  would  not  be  destroyed 
if  the  premises  were  occupied,  the  court  held  that  as  the 

1.  Traders    Ins.   Co.    vs.  Catlin,  163    Ills.,  256;    45  N.  E.,  256; 

35  L.  E.  A.,  595;  New  England  Fire  &  M.  Ins.  Co.  vs, 
Wetmore,  32  111.,  221;  Germania  Fire  Ins.  Co.  vs.  Klewer. 
129  111.,  599. 

2.  Traders  Ins.  Co.  vs.  Catlin,  163  111.,  256;  Cornish  vs.  Farm 

Building  Fire  Ins.  Co.,  74  N.  Y.,  295;  Planters  Mut,  Ins. 
Co.  vs.  Rowland,  66  Md.,  236;  Luce  vs.  Dorchester  Mut.  F. 
Ins.  Co.,  105  Mass.,  297;  Merriam  vs.  Middlesex  Ins.  Co.,  1 
Peter.,  170. 

3.  Phoenix  Assur.  Co.  vs.  Munger,  —  Tex.,  Civ.  App.  — ;  49 

S.  W.,  271;  Ausable  Lumber  Co.  vs.  Detroit  Ins.  Co., 
89  Mich.,  407;  Hickley  vs.  Germania  F.  Ins.  Co.,  140 
Mass.,  38. 

4.  Bently  vs.  Lumberman's  Ins.  Co.,  191  Pa.,  276;  43  Atl.,  209. 


414  Explosion. 

proceeding's  were  in  a  court  of  equity  the  rights  of  the 
parties  must  be  determined  on  the  principles  applied  in 
a  court  of  equity,  and  that  one  of  these  principles  is,  a 
court  of  equity  will  never  enforce  either  a  penalty  or  a 
forfeiture,  and  to  entitle  the  companies  to  enforce  a  mort- 
g'ag'e  and  notes  the  companies  must  show  that  the  prop- 
erty was  destroyed  because  unoccupied,  and  as  the  com- 
panies did  not  show  by  the  evidence  that  the  property 
way  destroyed  for  that  reason,  they  were  not  entitled  to 
enforce  the  mortgage  and  notes. l 

SEC.  8.  EXEMPTION  IN  INSURANCE  POLICIES  FROM 
EXPLOSIONS. — An  insurance  company  is  not  liable  for  an 
explosion  of  g"as  which  had  escaped  in  the  basement  of  a 
store  and  which  was  ignited  by  bringing  a  lighted  match 
in  contact  with  the  g*as  and  the  explosion  caused  the 
floor  of  the  building  to  give  way,  and  the  g~oods  in  the 
store  fell  into  the  cellar  and  were  soiled  and  otherwise 
damag'ed,  where  the  insurance  policy  provided:  "This 
company  shall  not  be  liable  by  virtue  of  this  policy  *  * 
for  any  loss  caused  by  explosion  of  gunpowder,  nor  any 
explosive  substance,  nor  by  lightning  or  explosion  of  any 
kind,  unless  fire  ensues,  and  then  for  the  loss  or  damage 
by  fire  only."  The  only  fire  complained  of  was  the  lighted 
match  which  was  unintentionally  ignited,  but  this  was 
not  a  fire  as  contemplated  by  the  fire  insurance  policy. 2 
So  an  exception  in  a  policy  "for  any  loss  or  damage  oc- 
casioned by  or  resulting1  from  any  explosion  whatever" 
will  relieve  an  insurance  company  for  damages  resulting1 
from  an  explosive  vapor  coming  in  contact  with  a  burn- 
ing gas  jet.  The  burning1  gas  jet  "was  not  such  a  fire  as 
was  contemplated  by  the  parties  as  the  peril  insured 
ag'ainst.  The  gas  jet,  though  burning1  was  not  a  destruc- 
tive force,  against  the  immediate  effects  of  which  the 
policy  was  intended  as  a  protection.  Although  it  was 
a  possible  means  of  putting1  such  a  destructive  force  in 

1.  Traders  Ins.  Co.  vs.  Race,  142  111.,  338. 

2.  Heuer  vs.  Northwestern  Nat.  Ins.  Co.,  144  111.,  393;  33  N.  E., 

411;  19  L.  R.  A.,  594;  Heuer  vs.  Winchester  Fire  Ins.  Co., 
44111.,  A.,  429. 


Proximate  Cause.  415 

motion,  it  was  no  more  the  peril  insured  against  than  a 
friction  match  in  the  pocket  of  an  incendiary."1  An  in- 
surance company  is  not  liable  for  any  kind  of  an  explo- 
sion under  a  provision  against  "any  loss  or  damages  by 
fire  which  may  happen"  and  "occasioned  by  explosions 
of  any  kind,  by  means  of  invasions,"  etc.,  and  the  pro- 
vision is  not  limited  to  invasions.2  So  where  a  policy 
exempted  a  company  under  a  provision  "for  loss  caused 
by  explosions  of  any  kind  unless  fire  ensues  and  then  for 
loss  or  damage  by  fire  only"  an  explosion  of  vapors  which 
came  in  contact  with  a  burning  lamp  was  within  the  ex- 
ception, and  that  the  burning  lamp  was  not  a  fire  within 
the  policy,  hence  there  was  no  fire  prior  to  the  explosion.8 
So  where  an  insurance  policy  exempts  a  company  for 
explosions  except  for  "gas,"  the  exception  applies  only 
to  illuminating  gas  and  all  other  explosive  gases  are 
within  the  exemption  for  damages.4  So  where  an  insur- 
ance company  provided  against  liability  for  damages 
against  explosions  in  the  following  language:  "This  in- 
surance does  not  apply  to  or  cover  *  *  *  any  loss 
caused  by  explosion  unless  fire  ensues,  and  the  loss  or 
damage  by  fire  only,"  and  upon  the  policy  was  pasted  a 
written  slip  providing  that  the  insurance  covered  loss 
caused  by  lightning  to  the  amount  the  property  was  in- 
sured. The  damages  to  the  insured  were  caused  by  an 
explosion  of  gunpowder  stored  on  an  adjoining  lot,  and 
the  immediate  cause  of  the  explosion  was  the  result  of 
the  building  being  struck  by  lightning.  The  loss  was 
occasioned  by  the  explosion  and  the  insurer  was  not 
liable.5 

SEC.  9.  WHEN  is  AN  EXPLOSION  THE  PROXIMATE 
CAUSE  OF  AN  INJURY  TO  PROPERTY  WHERE  THE  POLICY 
EXEMPTS  THE  COMPANY  PROM  LIABILITY  CAUSED  BY 

1.  United  States  F.  &  M.  Ins.  Co.  vs.  Foote,  22  Ohio  St.,  340;  10 

Am.  Rep.,  735. 

2.  Smiley  vs.  Citizens  Fire  &  Marine  Ins.  Co.,  14  W.  Va.,  33. 

3.  Briggs  vs.  Citizens  Ins.  Co.,  53  N.  Y.,  446. 

4.  Stanley  vs.  Western  Ins.  Co.,  3  Exch.,  71. 

5.  German  Ins.  Co.  vs.  Roost,  55  Ohio  St.,  581;  45  N.  E.,  109;  36 

L.  R.  A.,  236. 


416  When  Company  is  Not  Liable. 

EXPLOSIONS. — In  giving-  construction  to  exemption  from 
liability  for  damages  the  question  often  arises  as  to 
whether  the  loss  is  attributable  to  the  fire  or  to  the  ex- 
plosion, or  whether  the  fire  is  an  incident  to  the  explo- 
sion, or  whether  the  explosion  is  an  incident  to  the  fire. 
If  a  fire  breaks  out  and  during  the  progress  of  the  fire  an 
explosion  occurs,  the  effects  of  the  explosion  as  well  as 
the  fire  will  be  included  and  covered  by  a  policy  which 
insures  against  a  loss  caused  by  fire.  The  fire  in  such  a 
case  is  regarded  as  the  efficient  cause  of  the  loss  and  the 
explosion  as  a  mere  incident.1  So,  where  a  fire  was 
burning  a  building,  and  during  the  progress  of  the  fire 
some  combustible  material  took  fire  and  a  stream  of 
water  was  turned  on  the  material  and  an  explosion  took 
place,  the  fire  was  the  efficient  cause  of  the  loss  and  the 
explosion  but  a  mere  incident.2  The  proximate  cause  is 
the  efficient  cause — the  one  that  necessarily  sets  the 
other  causes  in  operation.  The  causes  that  are  merely 
incidental  or  instruments  of  a  superior  or  controlling 
agency  are  not  the  proximate  causes  and  the  responsible 
ones,  though  they  may  be  nearer  in  time  to  the  result. 
It  is  only  where  the  causes  are  independent  of  each  other 
that  the  nearest  fs,  of  course,  to  be  charged  with  the  dis- 
aster.3 So,  where  combustible  material  while  in  the  pro- 
cess of  combustion  produced  an  explosion,  the  effects  are 
the  natural  results  of  the  combustion  of  combustible  ma- 
terial; and,  as  a  combustion  is  the  action  of  fire,  the  fire 
must  be  held  to  be  the  proximate  cause  of  the  loss.4 

An  insurance  company  was  held  not  liable  for  the 
destruction  of  a  building  where  the  policy  exempted  the 
company  for  damages  caused  by  explosives,  although 
there  was  a  written  slip  attached  to  the  policy  providing 

1.  Heuer  vs.  Northwestern  Ins.  Co.,  144  111.,  393;   33  N.  E.,  41: 

Briggs  vs.  North  American  &  M.  Ins.  Co.,  53  N.  Y.,  446; 
United  Life,  F.  &  M.  Ins.  Co.  vs.  Foote,  22  Ohio  St.,  340. 

2.  American  Steam  Boiler  Ins.  Co.  vs.  Chicago  Sug.  Ref.  Co.,  57 

Fed.  R.,  294;  21  L.  R.  A.,  572. 

3.  Aetna  Ins.  Co.  vs.  Boon,  95  U.  S.,  117. 

4.  Scripture  vs.  Lowell  Mut.  F.  Ins.  Co.,  10  Cush.,  356;  Wash- 

burn  vs.  Farmers  Ins.  Co.,  2  Fed.  R.,  304. 


Remote  Cause.  417 

to  indemnify  for  any  loss  caused  by  lightning  and  the 
lightning  set  fire  to  a  building  seventy  feet  awa}^,  and  the 
fire  was  communicated  to  some  explosive  material  in  the 
building  and  the  material  exploded  and  caused  the  dam- 
ages. The  lightning  was  regarded  as  the  remote  cause 
of  the  damages  under  the  provisions  of  the  policy.  *  The 
general  rule  is,  however,  that  if  the  fire  starts  and  is  in 
progress,  any  explosion  which  may  take  place  during  the 
progress  of  the  fire  will  be  regarded  but  as  a  mere  inci- 
dent to  the  fire  and  the  insurance  company  will  not  be 
exempt  from  liability. 2  So,  where  a  policy  provided  that 
the  company  would  not  be  liable  "for  explosions  of  any 
kind  whatever,"  the  company  was  liable  for  any  loss  by 
fire  which  followed  the  explosion.8  Where  the  policy 
only  provided  that  the  company  shall  not  be  liable  for 
damages  caused  by  an  explosion,  the  company  will  be 
liable  for  damages  by  fire  which  was  caused  by  the  ex- 
plosion.4 But,  in  such  a  case,  the  damages  will  be  lim- 
ited to  the  injuries  caused  by  the  fire.5  There  are  cases, 
however,  which  hold  that  no  liability  attaches  when  the 
fire  was  the  result  of  the  explosion  under  a  policy  ex- 
empting the  company  from  any  liability  occasioned  by 
an  explosion.8  So,  where  the  policy  issued  to  an  express 
company  provided  "that  no  loss  is  to  be  paid  arising  from 
petroleum  or  other  explosive  oils  or  in  case  of  collision." 
The  insurer  was  not  liable  where  a  collision  of  railroad 
trains  loaded  with  petroleum  occurred  and  the  oil  took  fire 
and  caused  the  goods  to  be  consumed.7  It  has  been  said 

1.  Germana  Fire  Ins.  Co.  vs.  Roost,  55  Ohio  St.,  581;  45  N.  E., 

1097. 

2.  Trans-Atlantic  Fire  Ins.  Co.  vs.  Dorsey,  56  Md.,  70;  LaForee 

vs.  Williams,  43  Mo.  App.,  518;  Washburn  vs.  Miami  Val- 
ley Ins.  Co.,  2  Fed.  R.,  633;  Washburn  vs.  Farmers  Ins. 
Co.,  2  Fed.  R.,304. 

3.  Heffron  vs.  Kittaning  Ins.  Co.,  132  Pa.,  580. 

4.  Boalmans  Fire  &  Marine  Ins.  Co.,  23  Ohio  St.,  85. 

5.  Commercial  Ins.  Co.  vs.  Robinson,  64  111.,  265;  Stanley  vs. 

Western  Ins.  Co.,  L.  R.;  3  Exch.,  71. 

6.  St.  John  vs.  American  Mut.  Fire  Ins.  Co.,  11  N.  Y.,  516;  Lou- 

isiana Mut.  Ins.  Co.  vs.  Tweed,  7  Wall.,  44. 

7.  Imperial  Fire  Ins.  Co.  vs.  Fargo,  95  U.  S.,  227. 


418  Using  Prohibited  Article. 

by  a  court  in  a  well  considered  case  that  "it  is  a  well  set- 
tled principle  of  law  of  insurance  that  the  proximate, 
and  not  the  remote,  cause  of  the  loss  must  be  regarded, 
in  order  to  ascertain  whether  the  loss  is  covered  by  the 
policy  or  not;"  and,  "where  a  lighted  match  is  applied  to 
a  keg  of  powder,  or  to  illuminating  gas  confined  in  a 
room,  and  an  explosion  thereby  occurs,  which  causes 
damages  but  is  not  followed  by  combustion,  the  explo- 
sion is  the  proximate  cause  of  the  injury,  and  the  lighted 
match  is  only  the  remote  cause.  In  such  a  case  fire  does 
not  reach  the  property  injured,  but  the  concussion  result- 
ing from  the  explosion  damages  it."1  So,  where  fire 
broke  out  some  distance  from  a  building  and  an  explo- 
sion took  place,  and  the  building  was  damaged  by  the 
concussion,  "it  would  be  going  into  the  causes  of  causes 
to  say  that  this  was  an  injury  caused  by  the  fire  to  the 
property  insured.2 

Where  a  policy  does  not  exempt  the  company  from 
loss  caused  by  an  explosion  the  company  will  be  liable, 
although  the  fire  may  be  the  remote  cause. 3 

SEC.  10.  DESTRUCTION  OF  BUILDING  BY  BRINGING 
MATERIAL  ON  THE  PREMISES  WHICH  is  PROHIBITED  BY 
THE  POLICY. — Where  the  insured  occupied  a  building 
with  a  stock  of  wood  and  willow  ware  at  the  time  a  pol- 
icy was  issued  on  the  stock,  and  thereafter  the  insured 
leased  a  porch  on  the  outside  and  rear  of  the  building  to 
a  third  person,  and  such  third  person  drove  a  nail  in  the 
wall  on  the  outside  of  the  building  and  hung  a  gasoline 
lamp  filled  with  gasoline  on  the  nail,  and  the  gasoline 
lamp  exploded  and  destroyed  the  building,  and  a  fire  was 
started  by  the  explosion,  the  company  was  not  liable  for 
the  damages  to  the  stock  where  the  policy  provided  that 

1.  Heuer  vs.  Northwestern  Nat.  Ins.  Co.,  144  111.,  393. 

2.  Everett  vs.  London  Assn.  Co.,  19  C.  B.  N.  S.,  126;  Caballero 

vs.  Home  Mut.  Ins.  Co.,  15  La.  Ann.,  217. 

3.  Renshaw  vs.  Missouri  Ins.  Co.,  103  Mo.,  595;  Renshaw  vs. 

Firemans  Ins.  Co.,  33  Mo.  App.,  394;  Waters  vs.  Merchants 
L.  Ins.  Co.,  11  Pet.,  213;  Scripture  vs.  Lowell  Mut.  F.  Ins. 
Co.,  lOCush.,359. 


Waiver  by  the  Insurer.  419 

no  gasoline  shall  be  kept,  used  or  allowed  on  the  prem- 
ises, even  if  the  insured  did  not  know  that  the  third  per- 
son was  using-  the  gasoline  lamp.  His  ignorance  was 
no  excuse  for  failure  to  keep  the  covenant  in  the  policy 
that  no  gasoline  would  be  kept  or  used  on  the  premises.1 

SEC.  11.  WHERE  THE  INJURY  is  NOT  CAUSED  BY  THE 
KEEPING  OR  USE  OF  THE  PROHIBITED  ARTICLE.— An  in- 
surance company  is  liable  for  the  destruction  of  a  build- 
ing by  fire  where  the  policy  provides  that  petroleum, 
benzine,  gasoline,  etc.,  shall  not  be  kept,  used  or  allowed 
on  the  premises,  excepting  kerosene  of  the  legal  stand- 
ard, which  shall  be  used  for  lights  only,  provided  that 
the  oil  shall  be  drawn  and  the  lamps  filled  and  trimmed 
in  the  day  time.  Although  the  insured  used  oil  in  mak- 
ing a  fire  in  a  stove,  but  the  use  of  the  oil  in  such  a 
manner  did  not  cause  the  fire.a 

An  insurance  company  cannot  defeat  the  payment  of 
a  loss  caused  by  fire  where  the  policy  prohibited  the 
keeping  and  use  of  gasoline  on  the  premises  when  the 
loss  was  not  occasioned  by  the  keeping  and  use  of  the 
gasoline;  and  this  is  more  especially  true  where  the  in- 
surance company  inspected  the  premises  and  was  fully 
aware  of  the  business  that  was  carried  on  and  there  is 
proof  that  the  use  of  gasoline  was  necessary  in  the  con- 
duct of  the  business.3 

SEC.  12.  WAIVER.— If  the  prohibited  articles  are  on 
the  premises  at  the  time  the  policy  is  issued  and  the 
agent  of  the  company  was  cognizant  of  the  way  the 
building  was  kept  and  used  at  the  time  the  policy  was 
issued,  the  company  waives  the  provision  in  the  policy 
as  to  the  keeping  of  the  prohibited  articles  on  the  prem- 
ises.4 So  it  is  an  implied  waiver  of  a  condition  in  an  in- 

1.  Kohlman  vs.  Selvage,  54  N.  Y.  Supp.,  230. 

2.  Snyder  vs.  Dwelling  House  Ins.  Co.,  59  N.  J.  L.,  544;  37  Atl. 

1022. 

3.  Fraim  vs.  National  Fire  Ins.  Co.,  170  Pa.,  151;  32  Atl.,  613; 

Fraim  vs.  Manchester  Fire  Assn.  Co.,  170  Pa.,  166;  32  Atl., 
616;  American  Car  Ins.  Co.  vs.  Green,  41  N.W.,  77. 

4.  Kenton  Ins.  Co.  vs.  Downs,  12  Ky.  L.  R.,  115;  13  S.W.,  882. 


420  Prohibited  Article  Necessary. 

surance  policy  against  the  keeping-  of  gasoline  on  the 
insured,  premises  where  the  policy  insures  against  the 
goods  usually  kept  in  "a  general  store"  and  the  gasoline 
was  one  of  the  articles  usually  kept,1  and  if  a  policy  per- 
mits gun  powder  to  be  kept  and  kerosene  not  to  exceed 
five  barrels,  the  policy  is  not  avoided  because  three 
boxes  of  squibs  were  kept  on  the  premises,  contrary  to  a 
printed  clause  in  the  policy  when  the  insurance  was  on  a 
general  store  and  the  insurance  covered  such  articles  as 
were  usually  kept.2  So  where  an  insurance  policy  cov- 
ered a  factory  and  its  machinery,  but  prohibited  the  use 
of  petroleum  in  and  about  the  factory,  the  company  was 
held  liable  on  the  policy  where  the  insured  used  petro- 
leum for  lubricating  purposes.  The  keeping  and  the  use 
of  petroleum  would  not  release  the  company  from  dam- 
ages where  the  evidence  showed  that  it  was  appropriate 
and  customary  article  when  used  for  lubricating  pur- 
poses and  kept  solely  for  that  purpose;  and  that  the  in- 
surance company,  when  it  placed  the  policy  on  the  build- 
ing, knew  that  it  was  used  in  the  factory  and  to  operate 
the  factory  it  was  necessary  to  use  machinery  and  that 
the  machinery  must  be  oiled;  and  that  if  petroleum  was 
usual  and  necessary  the  company  must  be  supposed  to 
have  contracted  with  reference  to  such  use  as  an  ordi- 
nary incident  to  the  business  and  the  use  must  have  been 
contemplated  though  prohibited  in  the  printed  portion 
of  the  policy.8  Where  a  policy  provided  that  it  would 
become  void  if  benzine  was  kept,  used  or  allowed  on  the 
premises,  and  at  the  time  the  policy  was  issued  the  as- 
sured owned  a  furniture  store  and  repair  shop  con- 
nected therewith  which  was  covered  by  the  insurance 
and  used  benzine  at  the  time  the  policy  was  issued,  and 
continued  to  use  it  thereafter  and  the  benzine  was  an  ar- 
ticle usually  and  necessarily  kept  in  operating  the  re- 
pair department  of  a  furniture  store,  the  policy  was  not 

1.  Barnard  vs.  National  Fire  Ins.  Co.,  27  Mo.  App.,  26. 

2.  Mechanics  &  T.  Ins.  Co.  vs.  Floyd,  20  Ky.  L.  Rep.,  1538;  49 

S.  W.,  543. 

3.  Carlin  vs.  Western  Assn.  Co.,  57  Md.,  515;  40  Am.  R.,  440. 


Insuring  Prohibited  Article.  421 

forfeited  by  the  use  of  the  benzine,  *  'because  when  a  con- 
tract of  insurance  by  the  written  portion,  covers  prop- 
erty to  be  used  in  conducting  a  particular  business,  the 
keeping-  of  an  article  necessarily  used  in  such  business 
will  not  avoid  the  policy,  even  though  expressly  prohib- 
ited in  the  written  portion  of  the  contract."1  So  where  a 
policy  covered  a  jewelry  stock  and  described  as  "watches, 
jewelry,  etc.,  and  watch-makers'  materials"  and  the  de- 
scription was  in  writing,  and  the  printed  portion  of  the 
policy  contained  a  condition  that  if  benzine,  gasoline,  or 
petroleum  or  crude  earth  or  coal  oils  are  kept  or  used  on 
the  premises  without  written  consent,  the  policy  would 
become  void,  and  the  evidence  showed  that  it  was  neces- 
sary to  use  kerosene  in  cleaning  clocks  and  that  benzine 
was  on  hand  and  used  to  clean  watches  and  that  the  in- 
sured was  engaged  in  the  business  at  the  time  the  policy 
was  issued  and  that  the  insured  had  kerosene  and  ben- 
zine in  the  building  when  it  was  destroyed  by  fire,  the 
insured  was  entitled  to  recover  the  value  of  the  stock 
destroyed  because  the  kerosene  and  benzine  were  insured 
under  the  terms  "watchmakers'  materials."  If  the  ar- 
ticles are  insured,  the  insurance  company  cannot  say  the 
keeping  of  them  avoided  the  policy.  And  if  the  kerosene 
or  benzine  were  not  insured  yet  if  the  articles  were  em- 
ployed by  the  insured  in  the  conduct  of  the  particular  busi- 
ness and  the  use  of  such  articles  is  a  necessary  incident 
to  the  conduct  of  the  business,  "the  parties  will  be  pre- 
sumed to  have  contracted  with  reference  thereto,  and  at 
the  time  the  insurance  policy  was  issued  the  insurer  will 
be  presumed  to  have  in  contemplation  the  use  of  these 
substances  by  the  assured  when  he  assumed  the  risk; 
and  under  such  circumstances  will  be  presumed  to  have 
waived  the  condition  under  which  the  use  of  the  sub- 
stances would  render  the  policy  void."2  "The  issuance 
of  a  policy  of  insurance  with  knowledge  of  facts  which 

1.  Faust  vs.  American  Fire  Ins.  Co.,  91  Wis.,  158;  64  N.  W.,  883. 

2.  Marl  vs.  Conn.  F.  Ins.  Co.,  95  Ga.,  604;  23  S.  E.,  463;  30  L. 

R.  A.,  835;  Harper  vs.  New  York  City  Ins.  Co.,  22  N.  Y., 
441;  Hall  Insurance  Co.,  58  N.  Y.,  292. 


422  Prohibited  Article  Used  by  a  Tenant. 

by  the  terms  of  the  policy,  render  it  void  will  be  treated 
as  a  waiver  of  a  ground  of  forfeiture. *  So  where  a  policy 
of  insurance  provided  that  the  company  would  not  be 
liable  if  kerosene  was  kept  on  the  premises  insured,  but 
the  agent  told  the  insured  that  the  provision  of  the 
policy  would  not  affect  the  rights  of  the  insured  and  the 
kerosene  was  kept  on  the  premises  at  the  time  the  policy 
was  issued  the  acts  of  the  ag^ent  bind  the  company  and 
the  waiver  will  operate  on  a  renewal  of  the  policy.* 
And  where  a  person  owned  and  operated  a  paint  shop 
and  had  the  same  insured  and  benzine  was  a  necessary 
article  of  use  in  the  business  a  condition  in  a  policy  that 
the  policy  is  void  if  benzine  is  kept  or  used  on  the  premises 
will  not  prevent  a  recovery  on  the  policy,  though  ben- 
zine was  used.8  So  where  an  insurance  policy  prohibits 
the  use  of  petroleum  or  its  products  on  the  premises,  but 
a  printed  slip  permitted  the  property  to  be  used  for  haz- 
hazardous  or  extra-hazardous  purposes,  the  policy  will 
not  be  void  because  the  insured  used  the  prohibited  arti- 
cles on  the  premises.4 

SEC.  13.  LIABILITY  OF  INSURANCE  COMPANY  TO  THE 
OWNER  WHEN  THE  TENANT  KEEPS  AND  USES  THE  PRO- 
HIBITED ARTICLES  ON  THE  PREMISES. — Where  the  pro- 
hibited articles  were  brought  on  the  insured  premises  by 
a  lessee  the  acts  of  the  lessee  is  binding  on  the  lessor  and 
the  policy  will  become  void. B  And  if  a  policy  provides 
that  a  company  shall  be  released  from  all  liabilty  in  case 
naphtha  is  kept  or  used  on  the  premises,  the  insurance 

1.  Phoenix  Ins.  Co.  vs.  Flemming,  65  Ark.,  54;  39  L.  R.  A.,  789; 

44  S.  W.,  484;  Yack  vs  Home  Mut.  Ins.  Co.,  Ill  Cal.,  503; 
34  L.  R.  A.,  857;  Hears  vs.  Humbolt  Ins.  Co.,  92  Pa.,  15; 
Harper  vs.  Albany  Ins.  Co.,  17  N.  Y.,  197;  Archer  vs.  Mer- 
chants, etc.  Ins.  Co.,  43  Mo.,  434;  Phoenix  Ins.  Co.  vs. 
Taylor,  5  Minn.,  492;  Whitemash  vs.  Conway  Fire  Ins.  Co., 
16  Gray  359;  Viele  vs.  Germania  Ins.  Co.,  26  la.,  9. 

2.  Kruger  vs.  Western  F.  &  M.  Ins.  Co.,  72  Cal.,  91;  13  Pac.,  156. 

3.  Mascott  vs.  First  Nat.  Ins.  Co.,  69  Vt.,  116;  37  Atl.,  255. 

4.  Russell  vs.  Manufacturers  &  B  F.  Ins.  Co.,  50  Minn.,  409;  52, 

N.  W.,906. 

5.  Kohlman  vs.  Selvage,  34  (N.  Y.)  App.  Div.,  380. 


Right  of  a  Mortgagee.  423 

becomes  forfeited  by  the  keeping-  or  use  of  the  prohibited 
article  by  a  tenant  of  the  insured,  although  the  insured 
had  no  knowledge  of  the  keeping1  or  use  of  the  naphtha 
by  the  tenant. 1  There  are  authorities  which  hold  that 
the  increase  of  the  risk  by  the  tenant  cannot  affect  the 
rig-hts  of  the  landlord.8  Where,  however,  an  adminis- 
trator of  a  deceased  wife  took  out  a  policy  on  a  house 
and  furniture  belonging-  to  the  deceased  and  the  husband 
and  the  children  of  the  deceased  remained  in  possession 
and  occupied  the  house  after  the  death  of  the  wife,  and 
the  husband  brought  a  threshing  machine  near  the  house 
which,  as  the  insurance  company  claimed,  increased  the 
risk  contrary  to  the  terms  of  the  policy  and  the  house 
and  its  contents  were  destroyed  by  reason  of  sparks  from 
the  engine  of  the  machine  setting  straw  on  fire,  but  the 
record  did  not  show  what  sort  of  a  contract,  if  any,  ex- 
isted between  the  husband  and  the  administrator  as  to 
the  occupany  of  the  house,  so  the  court  presumed  that 
the  husband  had  absolute  custody  of  the  premises  and 
had  perfect  freedom  to  use  the  house  in  the  conduct  of 
his  business  as  he  had  charge  of  the  house  in  the  interest 
of  the  estate,  the  administrator  was  held  bound  by  the 
acts  of  the  husband;  and,  "if  the  act  which  increased 
the  insurer's  risk  was  that  of  the  tenant,  unknown  to  the 
landlord,  it  was  no  excuse  for  the  inf ring-erne nts  of  the 
covenants  of  the  policy.  If  the  husband  occupied  the 
premises  under  the  circumstances  indicated  as  inferable 
from  the  record,  he  would  probably  be  clothed  with  more 
power  and  dominion  over  the  property  than  the  case  of 
an  ordinary  tenant  who  had  no  interest  in  the  title;  and 
his  acts  of  negligence  would  be  binding  on  the  assured.  "s 
A  mere  temporary  use  of  a  prohibited  article  by  a  ten- 
ant will  not  per  se  work  a  forfeiture.4 

1.  Badger  vs.  Platts,  68  N.  H.,  222;  44  Atl.,  296;  Gunther  vs. 

London,  etc.  Ins.  Co  ,  134  U.  S.,  110;  see  also  Insurance 
Co.  vs.  Gunther,  116  U.  S.,  113;  Association  vs.  Williamson, 
26  Pa.  St.,  196. 

2.  Adair  vs.  Southern  Mut.  Ins.  Co.,  107  Ga.,  297;  33  S.  E.,  78. 

3.  Adair  vs.  Southern  Mut.  Ins.  Co.,  107  Ga.,  297;  33  S.  E.,  78; 

45  L.  R.  A.,  204. 

4.  Adair  vs.  Southern  Ins.  Co.,  107  Ga.,  297;  33  S.  E.,  78. 


424  Prohibited  Article  Used  by  Employes. 

No  act  of  a  tenant  can  affect  the  rights  of  a  mort- 
gagee where  the  insurance  policy  provides  that  in  case 
of  loss  the  amount  of  the  loss  not  to  exceed  the  mortgage 
debt  or  the  amount  of  the  policy  shall  be  paid  to  the 
mortgagee,  although  the  tenant  brought  naphtha  on  the 
premises  contrary  to  the  terms  of  the  policy  and  the 
building  was  destroyed.1 

Where  the  agents  of  the  owners  of  a  building  employ 
persons  to  paint  the  building  and  the  persons  employed 
use  naphtha  torches  to  burn  off  the  old  paint,  and  such 
agents  acquiesce  in  having  the  paint  taken  off  in  this 
way,  the  acts  of  the  agents  are  binding  on  the  insured.8 

SEC.  14.  LIABILITY  OF  AN  INSURANCE  COMPANY  FOR 
A  DESTRUCTION  OF  A  BUILDING  WHERE  THE  EMPLOYES 
OF  THE  OWNER  KEEP  AND  USE  THE  PROHIBITED  ARTICLE 
ON  THE  PREMISES. — Where  an  insurance  policy  provided 
that  "this  policy,  unless  otherwise  provided  by  agree- 
ment endorsed  thereon,  or  added  hereto,  shall  be  void  if 
the  hazard  shall  be  increased  by  any  means  within  the 
control  or  knowledge  of  the  insured,  or  if  there  be  kept, 
used  or  allowed  on  the  above  described  premises,  ben- 
zine, naphtha  or  other  explosives;"  and  the  persons  in 
charge  of  the  building,  a  court  house,  made  an  agreement 
with  a  person  to  paint  the  court  house  some  time  before 
the  policy  was  issued,  and  after  the  policy  was  issued, 
the  painter  began  to  remove  the  old  paint  and  gasoline 
torches  were  used  to  blister  the  paint  so  that  it  may  be 
removed  preparatory  to  that  of  applying  the  new  paint. 
The  painter  was  engaged  in  removing  the  paint  from  the 
tower  and  cornice  when  the  fire  occurred.  The  tower 
and  the  cornice  were  covered  with  a  metal  covering  and 
beneath  this  covering  was  wood  and  the  painter  and  his 
men  had  about  removed  all  the  paint  when  the  fire  took 
place.  The  painter  also  kept  a  five-gallon  can  of  gaso- 
line in  the  tower  to  be  used  when  needed  to  supply  the 
torches.  One  of  the  defenses  set  up  by  the  insurance 

1.  Badger  vs.  Platts,  68  N.  H.,  222;  44  Atl.,  296. 

2.  First  Cong.  Ch.  vs.  Holyoke  Mut.  Ins.  Co.,  158  Mass.,  475;  19 

L.  R.  A.,  587. 


Risk  Increased  by  Use  of  Gasoline.  425 

company  was  that  gasoline  or  naphtha  was  stored,  in 
the  building  covered  by  the  policy  at  the  time  of  the  fire, 
continuously  for  several  days  immediately  preceding1  the 
fire,  and  that  no  agreement  was  indorsed  on  the  policy 
or  added  thereto  permitting  such  storage;  and  by  reason 
thereof,  within  the  true  intent  and  meaning  of  the  pro- 
visions of  the  policy,  the  policy  became  null  and  void. 

The  temporary  keeping  of  gasoline  or  naphtha  for 
the  purpose  of  removing  the  old  paint  was  held  not  with- 
in the  terms  of  the  policy  and  that  the  meaning  of  the 
word  keep  was  as  to  "store"  merchandise  for  safe  keep- 
ing to  be  delivered  in  the  same  condition  as  when  received 
and  that  the  gasoline  or  naphtha  used  by  the  painters 
was  not  stored  in  the  building  within  the  terms  of  the 
policy.1 

The  insurance  company  also  contended  that  the  haz- 
ard was  increased  by  the  use  of  gasoline  without  the 
consent  of  the  company.  The  insured  presented  evidence 
that  it  was  customary  for  painters  for  many  years  before 
the  policy  was  issued  to  use  gasoline  to  burn  off  the  old 
paint.  The  use  of  the  gasoline  was  held  not  to  render  the 
policy  void  and  that  there  was  an  implied  exception  in 
the  policy  of  what  was  done  in  the  making  of  ordinary 
repairs,  and  when  the  policy  did  not  expressly  prohibit 
the  use  of  these  articles  in  making  ordinary  repairs  they 
may  be  used  for  the  purpose  of  repair. 8 

So  where  a  policy  provided  that  the  insured  should 
not  keep  petroleum,  naphtha,  benzine,  etc,,  on  the  prem- 
ises, the  policy  did  not  apply  to  the  temporary  taking  of 
benzine  on  the  premises  for  the  purpose  of  removing 
grease  and  dirt  from  the  machinery  used  on  the  premises. s 

SEC.  15.  WHEN  is  THE  HAZARD  CONSIDERED  AS  IN- 
CREASED?— An  action  for  a  loss  was  brought  against  an 

1.  Smith  vs.  German  Ins.  Co.,  107  Mich.,  270;  65  N.  W.,  236;  30 

L.  R.  A.,  368. 

2.  Smith  vs.  German  Ins.  Co.,  107  Mich.,  270;  65  N.  W.,  236;  30 

L.  R.  A.,  368. 

3.  Mears  vs.  Humbolt  Ins.  Co.,  92  Pa.,  15;  37  Am.  R.,  647;  see 

also  O'Neil  vs.  Buffalo  Ins.  Co.,  3  N.  Y.,  122. 


426  Increase  of  Risk  Question  of  the  Jury. 

insurance  company,  where  the  policy  provided:  That  the 
"policy  shall  be  void  if  *  *  *  without  the  assent  in 
writing"  or  print  of  the  company  *  *  *  the  situation 
or  circumstance  affecting1  the  risk  shall  be,  or  with  the 
knowledge,  advice,  agency  or  consent  of  the  insured  be 
so  altered  as  to  cause  an  increase  of  such  risk  *  *  * 
or  if  champhene,  benzine,  naphtha  or  other  chemical  oils 
or  burning  fluids  shall  be  kept  or  used  on  the  insured 
premises."  The  building  insured  was  a  frame  church  and 
the  outside  was  covered  with  weatherboards  and  was 
painted  and  sanded  on  the  outside  at  the  time  it  was  in- 
sured. The  paint  had  peeled  and  curled  and  at  the  time 
of  the  fire  the  church  trustees  were  repainting  the  build- 
ing. The  painters  were  hired  by  the  day  to  do  the  work 
and  the  trustees  were  to  furnish  the  material  and  the 
trustees  had  arranged  to  have  the  old  paint  removed  and 
had  arranged  with  the  painters  that  the  paint  would  be 
burned  off  with  a  torch.  The  boss  painter  had  procured 
a  naphtha  torch  which  was  so  constructed  that  the  torch 
would  hold  a  quart  of  naphtha,  and  the  torch  had  a  han- 
dle on  it  and  a  tube  extending  on  the  opposite  side 
through  which  a  flame  would  be  emitted,  produced  by 
the  gas  from  the  naphtha  and  compressed  air  and  was 
so  arranged  that  it  would  send  a  flame  about  two  feet, 
when  in  use.  This  flame  was  used  to  blister  the  paint 
so  that  it  could  be  removed.  At  the  time  the  torch  was 
used  the  weather  was  dry  and  hot  and  the  risk  was 
greatly  increased. 

In  giving  construction  to  the  policy  the  court  held 
that  naphtha  was  not  "kept"  on  the  premises.  "The  word 
'kept'  as  used  in  the  policy  implies  a  use  of  the  premises 
as  a  place  of  deposit  for  the  prohibited  articles  for  a  con- 
siderable period  of  time."1 

The  naphtha  which  was  used  to  burn  off  the  paint 
from  the  outer  walls  was  held  to  be  used  on  the  premises 
although  the  torch  was  kept  about  two  feet  from  the  wall 
but  the  flame  from  the  torch  reached  the  wall  and  a  con- 

1.  First  Cong.  Ch.  vs.  Holyoke  Mut.  Ins.  Co.,  158  Mass.,  475. 


Payment  of  Loss  by  Wrongdoer.  427 

struction  which  would  hold  that  the  naphtha  was  not  used 
"on  the  premises"  would  be  too  narrow  and  unreasonable.  * 
The  owners  of  the  church  were  entitled  to  have  it 
submitted  to  a  jury  on  one  ground,  to- wit:  that  the  change 
making  the  risk  more  hazardous  occurred  while  the  per- 
sons in  charge  of  the  property  were  making  ordinary 
repairs  and  in  the  proper  way,  and  that  under  the  policy 
there  was  an  implied  exception  of  what  was  done  in 
making  ordinary  repairs.  "Such  provisions  are  not  in- 
tended to  prevent  the  making  of  necessary  repairs  and 
the  use  of  such  means  as  are  reasonably  required  for  that 
purpose."  Both  parties  are  presumed  to  make  the  con- 
tract with  reference  to  the  proper  repair  of  the  property 
so  that  it  would  be  preserved.  And  although  the  making 
of  such  ordinary  repairs  may  increase  the  risk  or  the 
making  of  such  repairs  may  involve  the  use  of  some  pro- 
hibited articles,  but  the  use  of  such  articles  will  not  make 
a  policy  void  unless  the  policy  expressly  provides  that 
they  shall  not  be  used.  The  question  whether  the  re- 
pairs and  the  use  of  the  articles  at  the  time  they  were 
used  are  questions  of  fact  for  a  jury  to  determine. a 

SEC.  16.  RIGHT  OF  ACTION  .AGAINST  INSURANCE 
COMPANIES  WHEN  THE  Loss  Is  PAID  BY  THE  PERSON 
CAUSING  THE  DAMAGE. — An  insured  building  was  dam- 
aged by  an  explosion  of  gas  and  a  fire  which  followed 
the  explosion,  and  the  insured  brought  an  action  against 
the  gas  company  for  the  loss  caused  by  the  explosion,  and 
for  the  loss  not  covered  by  the  insurance  policy,  and  the 
gas  company  settled  with  the  insured  for  the  damages 
caused  by  the  explosion,  and  the  insured  then  brought 
an  action  against  the  insurance  company  for  the  dam- 
ages caused  by  the  fire.  The  insurance  company  set 
up  a  defense,  that  the  insured  had  settled  with  the  gas 
company  and  released  it  from  liability  from  the  fire,  as 

1.  First  Cong.  Ch.  vs.  Holyoke  Mut.  Ins.  Co.,  158  Mass.,  475. 

2.  First  Cong.  Ch.  vs.  Holyoke  Mut.  Ins.  Co.,  158  Mass.,  475; 

O'Neilvs.  Buffalo  F.  Ins.  Co.,  3  N.  Y.,  122;  Franklin  F. 
Ins.  Co.  vs.  Chicago  Co.,  36  Md.,  102;  Putman  vs.  Conn. 
Ins.  Co.,  4  Fed.  R.,  753. 


428  Loss  Not  Covered  by  the  Insurance. 

appeared  by  a  copy  of  the  settlement  and  release  attached 
to  the  affidavit  of  defense,  but  the  agreement  of  settle- 
ment between  the  insured  and  the  gas  company  purported 
to  settle  and  release  "all  claims  and  demands  of  every 
kind  of  the  said  first  party  arising1  out  of  or  occasioned 
by  the  explosion,  *  *  *  including  claims  for  loss  or 
suspension  of  rent  by  the  tenants  of  the  said  first  party. 
It  is  understood  that  the  foregoing1  settlement  and  re- 
lease do  not  affect  the  claim  of  the  said  first  party 
against  insurance  companies  for  loss  occasioned  by  fire, 
and  which  claim  said  first  party  shall  be  entitled  to  re- 
ceive in  addition  to  and  independently  of  the  sum  paid 
by  the  second  party."  The  insured  was  held  not  barred 
from  a  recovery  against  the  insurance  company,  since 
the  settlement  expressly  excepted  the  loss  occasioned 
by  the  fire,  and  only  settled  the  damages  done  by  the 
explosion  of  the  gas  in  shattering1  the  windows  and  walls 
and  the  loss  caused  by  the  buildings  being  temporarily 
unfit  for  occupancy.1  "If  the  fire  resulted  from  the  ex- 
plosion, and  the  explosion  was  chargeable  to  the  negli- 
g"ence  of  the  gas  company,  the  insured  had  an  election 
whether  to  proceed  against  the  gas  company  because  of 
its  negligence,  or  against  the  insurance,  company  on  its 
covenants  of  indemnity.  If  the  insured  had  proceeded 
against  the  g~as  company,  a  recovery  against  for  a  loss 
by  fire  would,  when  paid,  have  reimbursed  the  insured; 
and  its  claim  being1  thus  satisfied,  no  recovery  could  have 
been  against  the  insurance  company.  But  the  insured 
has  chosen  to  divide  its  loss  into  two  parts,  and  to  de- 
mand one  of  these  not  covered  by  its  policies  of  insur- 
ance from  the  g-as  company,  and  the  other  which  is  cov- 
ered from  the  insurance  company.  The  liability  of  the 
insurer  is  clear.  The  claim  is  within  the  letter  of  the 
policy.  "2  So  where  an  insured  had  his  stock  of  merchan- 
dise insured  in  nine  different  insurance  companies,  and  the 

1.  Insurance  Company  of  N.  A.  vs.  Fidelity  Title  &  Trust  Co., 

125  Pa.,  523;  16  Atl.,  791;  2  L.  R.  A.,  586. 

2.  Insurance  Company  of  N.  A.  vs.  Fidelity  Title  &  Trust  Co., 

125  Pa.,  523;  16  Atl.,  791;  2  L.  R.  A.,  586. 


Eights  of  Insurance  Company.  429 

property  insured  was  destroyed  by  illuminating1  gas,  and 
the  loss  was  due  to  the  negligence  of  the  gas  company,  and 
the  insured  furnished  proof  of  loss,  and  after  such  proof 
was  made  the  insurance  companies  had  appraisers  ap- 
pointed as  was  provided  by  the  terms  of  the  policies,  and 
the  appraisers  did  not  allow  the  insured  the  amount  for 
which  the  insured  furnished  proof,  and  after  the  allow- 
ance was  made  by  the  insurance  companies,  and  before 
the  amount  so  allowed  was  paid,  the  insured  instituted 
a  suit  against  the  gas  company  for  the  negligent  de- 
struction of  his  property,  and  claimed  damages  to  the 
amount  of  $50,000,  while  the  insurance  companies,  through 
the  appraisers,  allowed  only  $17,360.00.  Before  the  case 
was  heard  the  claimants,  as  well  as  other  insurance 
companies,  paid  the  insured  the  amount  for  which  the 
respective  companies  were  liable,  but  before  the  pay- 
ments were  made  the  insured  informed  the  various  insur- 
ance companies  that  the  suit  was  pending",  and  asked 
them  to  assist  in  the  prosecution  of  the  suit,  and  a  ma- 
jority of  the  insurance  companies  assented,  but  some  in- 
surance companies  refused  and  placed  their  ground  of  re- 
fusal on  the  fact  that  the  suit  should  be  prosecuted  in 
the  name  of  each  insurance  company  for  the  amount  of 
damage  paid  to  the  insured,  and  after  the  case  had  been 
called  for  trial  the  gas  company  offered  to  settle  the 
case,  but  the  insured  at  first  refused  until  some  of  the 
insurance  companies,  which  were  interesting  themselves 
in  the  prosecution  of  the  suit,  urged  him  to  settle,  and 
these  companies  and  the  insured  agreed  to  divide  the 
judgment  of  $18,000  agreed  upon  and  submitted  interroga- 
tories to  the  jury  which  was  empaneled  to  try  the  case 
and  the  jury  found  the  damages  to  be  $9,000  on  stock 
and  $9,000  on  his  loss  in  trade  and  the  $9,000  on  the  stock 
was  to  be  prorated  among-  the  insurance  companies;  and 
the  insurance  companies  which  undertook  to  prosecute 
separate  suits  found  out  after  the  settlement  of  the  suit 
that  separate  suits  could  not  be  maintained,  and  then 
claimed  their  proportion  of  the  amount  paid  by  the  gas 
company  to  the  insured  while  the  insured  insisted  that  the 


430  Suit  by  Insurers  Against  Wrongdoers. 

insurance  companies  were  entitled  to  no  more  than  their 
prorata  share  of  the  $9, 000  allowed  for  damages  to  stock 
and  costs  and  attorney's  fees  should  be  deducted  from 
that  amount,  the  insured  was  held  entitled  to  settle  the 
amount  of  unliquidated  damage  with  the  gas  company 
where  a  majority  of  the  companies  consent  to  such  a  set- 
tlement and  the  other  companies  that  failed  or  refused  to 
join  in  the  prosecution  of  the  suit  against  the  person  re- 
sponsible for  the  loss  are  entitled  to  only  their  pro  rata 
share  of  the  amount  allowed  for  the  property  destroyed 
and  covered  by  the  insurance,  and  the  costs  and  expenses 
and  attorney's  fees  are  first  to  be  deducted  from  the  judg- 
ment so  recovered  and  that  the  insured  was  entitled  to 
the  full  amount  allowed  for  damages  not  covered  by  the 
insurance  policies. * 

SEC.  17.  RIGHT  OF  THE  INSURANCE  COMPANIES  TO 
MAINTAIN  A  SUIT  AGAINST  THE  PARTIES  RESPONSIBLE 
FOR  THE  LOSS  AFTER  THE  PAYMENT  OF  THE  LOSS  TO 
THE  INSURED. — The  principles  of  law  governing  the  right 
to  subrogation  is  that  the  insurance  company  stands  in 
the  position  of  a  surety  for  the  loss  sustained  by  the  in- 
sured by  reason  of  the  wrongful  acts  of  others  and  the 
insurer  has  the  same  rights  and  remedies  as  the  insured 
may  have  against  the  parties  responsible  for  the  loss,  but 
the  rights  of  the  insurer  do  not  arise  until  the  payment 
of  the  loss  to  the  insured  and  the  insurer  has  no  right  to 
demand  to  be  subrogated  to  the  rights  of  the  insured  be- 
fore payment.  2  But  where  the  policies  provide  that  the  in- 
sured on  receiving  payment  shall  assign  the  policy  to  the 
insurers  the  companies  may  be  subrogated  to  the  rights 
of  the  insured  against  the  person  who  caused  the  loss.3 
An  action  on  the  policy  by  the  insurer  must  be  brought 

1.  Svea  Assurance  Co.  vs.,  Packham,  —  Md.,  — ;  48  Atl.,  359: 

52  L.  R.  A.,  95. 

2.  Insurance  Co.  of  N.  A.  vs.  Fidelity  Title  &  Trust  Co.,  125  Pa., 

523;  16  Atl.,  791;  2  L.  R.  A.,  586. 

3.  Niagara  Fire  Ins.  Co.  vs.  Fidelity  Title  &  Trust  Co.,  125  Pa., 

516;  16  Atl.,  790"  Packham  vs.  German  Fire  Ins.  Co.,  91 
Md.,  515;  46  Atl.,  1066;  50  L.  R.  A.,  828. 


Rights  of  Insurer — How  Barred.  431 

in  the  assured's  name  where  the  property  destroyed  ex- 
ceeds in  value  the  amount  insured. l  But  where  the  stat- 
ute provides  the  action  may  be  brought  in  the  name 
of  the  insured.8  The  insurer  is  regarded  as  but  a  surety 
and  is  entitled  to  the  remedies  and  securities  of  the  as- 
sured and  is  entitled  to  use  his  name  in  an  action  to  re- 
cover the  money  which  the  insurer  has  paid.  The  "right 
is  based  upon  the  equitable  doctrine  that  where  one  has 
been  obliged  to  pay  money  to  another  by  the  non-feasance 
or  misfeasance  of  a  third,  who  being  at  fault  ought  to  bear 
the  loss,  the  party  so  paying  as  by  his  direct  obligation 
towards  the  party  suffering  the  loss  he  may  be  compelled 
to  do,  shall  be  allowed  indirectly,  and  through  the  right 
which  the  injured  party  had,  to  compel  the  wrongdoer  to 
bear  the  burden  which  was  imposed  by  his  fault,  although 
between  him  and  the  wrongdoer  there  is  no  direct  rela- 
tion upon  which  to  found  a  cause  of  action.  *  *  *  The 
liability  of  the  wrong  doer  is,  in  legal  effect,  first  and 
principal  and  that  of  the  insurer  secondary."8  The  general 
rule  is  that  upon  the  payment  of  the  loss  by  the  insur- 
ance company  the  insurance  company  has  all  the  right 
and  remedies  the  insured  had  against  the  persons  whose 
negligence  caused  the  loss. 4 

SEC.  18.  RIGHT  OF  INSURANCE  COMPANY  TO  RE- 
COVER FROM  A  THIRD  PERSON— How  BARRED. — The  right 
of  subrogation  is  derivative  and  comes  solely  from  the 
assured  and  can  be  enforced  only  in  his  right.  If  the  in- 

1.  Union  Fire  Ins.  Soc.  vs.  Standard  Oil  Co.,  59  Fed.  Rep.,  984; 

8  C.  C.  A.,  433;  19  U.  S.  App.,  460. 

2.  Packham  vs.  German  Fire  Ins.  Co.,  91  Md.,  515;  46  Atl.,  1066; 

50  L.  R.  A.,  828. 

3.  Costellain  vs.  Preston  L.  R.,  11  Q.  B.  Div.,  380;  Packham  vs. 

German  Fire  Ins.  Co.,  91  Md.,  515;  46  Atl.,  1066;  50  L.  R. 
A.,  828. 

4.  Hall  vs.  Nashville  &  C.  Ry.,  13  Wall,  370;  Niagara  Fire  Ins. 

Co.,  vs.  Fidelity  Title  &  Trust  Co.,  123  Pa.,  516;  16  Atl., 
790;  Sims  vs.  Mutual  Fire  Ins.  Co.,  101  Mis.,  586;  77  N.W., 
908;  Omaha  Ry.  Co.  vs.  Ins.  Co.,  63  Neb.,  514:  73  N.  W., 
951. 


432          Eights  Based  on  the  Eights  of  the  Insured. 

sured  has  no  right  against  the  third  person  or  if  the  in- 
sured has  released  the  wrong  doer  from  liability  the  in- 
sured has  no  right  or  claim  which  can  be  transferred  to 
the  insurer  and  the  insurer  can  maintain  no  action  against 
a  third  person  who  may  have  caused  the  damages. * 

Where  the  claim  against  the  third  person  is  based 
on  a  tort  committed  by  the  third  person,  one  action  only 
can  be  brought  against  the  wrong  doer.2  So  where  a 
person  has  his  office  furniture  and  fixtures  insured  against 
loss  and  subsequently  the  property  is  destroyed  by  fire 
and  the  fire  was  caused  by  an  explosion  of  illuminating 
gas  and  the  gas  company  was  liable  for  the  explosion 
and  an  action  was  brought  by  the  insured  against  the 
gas  company  to  recover  damages  for  the  destruction  of 
other  property  than  that  covered  by  the  policy  on  the  fix- 
tures and  furniture  and  by  an  express  agreement  of  the 
parties  to  that  suit  the  damage  to  the  insured  property 
was  excluded  from  the  verdict  and  judgment  and  the  judg- 
ment was  satisfied  by  the  gas  company  and  the  insured 
then  brought  an  action  against  the  insurance  company 
to  recover  the  loss  sustained  and  covered  by  the  policy, 
the  insurance  company  was  held  to  be  released  from  its 
liability  on  the  policy  because  only  one  action  was  main- 
tainable against  the  gas  company  for  damages  and  as 
the  insured  had  expressly  excluded  the  damage  done  to 
the  property  covered  by  the  policy  the  legal  effect  of 
this  act  was  the  same  as  if  the  insured  had  released  the 
company  from  all  damages  done  to  this  property  and 
thus  destroyed  the  right  of  the  insurance  company  to 
maintain  action  against  the  gas  company.3 

The  rule  is  well  settled  that  where  the  insured  re- 
covers from  the  wrongdoer  the  full  amount  of  the  policy 
or  released  the  wrongdoer  from  liability,  the  insured 
must  give  credit  for  what  he  received  or  might  have  col- 

1.  Phoenix  Ins.  Co.vs.  E.  &  W.  Trans.  Co.,  117  United  States,  312. 

2.  Packham  vs.  German  Fire  Ins.  Co.,  91  Md.,  515;  46  Atl.,  1066; 

50  L.  R.  A.,  828. 

3.  Packham  vs.  German  Ins.  Co.,  91  Md.,  515;  46  Atl.,  1066:  50 

L.  R.  A.,  828. 


Settlement  With  Wrongdoer.  433 

lected  from  the  wrongdoer  and  if  the  whole  amount  of 
damages  could  be  recovered  the  insurance  company  will 
be  released  from  liability  where  the  insured  destroys  the 
right  of  the  insurer  to  recover  from  the  wrongdoer.1 

Nor  will  the  insurance  company  be  bound  because 
the  adjuster  was  on  the  ground  and  took  part  in  the  pro- 
ceedings where  the  company  gave  him  no  authority  and 
the  adjuster  expressly  disclaimed  any  authority  from  the 
insurance  company  at  the  time  of  the  transaction,  but 
expressed  his  opinion  that  it  was  a  good  settlement  and 
that  the  company  he  believed  would  be  satisfied.2 

SEC.  19.  WHEN  THE  RIGHT  OF  ACTION  AGAINST  AN 
INSURANCE  COMPANY  is  HELD  NOT  TO  BE  BARRED  AL- 
THOUGH THE  INSURED  HAS  SETTLED  WITH  THE  PERSON 
WHO  CAUSED  THE  Loss. — Where  an  insurance  policy 
provided  that  the  insurer  would,  in  case  of  loss  and  pay- 
ment thereof,  to  the  insured,  be  entitled  to  be  subrogated 
to  the  rights  of  the  insured  against  the  person  causing 
the  loss  and  through  the  negligence  of  a  gas  company 
the  insured's  property  was  destroyed  and  the  insured 
settled  with  the  gas  company  but  excluded  from  the  set- 
tlement the  amount  for  which  the  property  was  insured 
and  that  the  claim  against  the  insurance  company  would 
be  independent  of  that  paid  by  the  gas  company,  the  in- 
surance company  on  the  payment  of  the  amount  of  the 
policy  is  entitled  to  be  subrogated  to  the  rights  of  the 
insured  and  can  maintain  the  action  against  the  gas  com- 
pany for  the  amount  paid  to  the  insured  and  the  settle- 
ment in  no  way  affected  the  right  of  action.3  In  an  ac- 
tion by  the  insured  against  the  insurer  the  court  said: 

1.  Packham  vs.  German  Fire  Ins.  Co.,  91  Md.,  515;  46  Atl.,  1066; 

50  L.  R.  A.,  828;  Aetna  Ins.  Co.  vs.  Humboldt  &  St.  I.  Ry. 
Co.,  3  Dill.,  2;  Commercial  Union  Ins.  Co.  vs.  Lister  L.  R., 
9  Ch.,  483;  Dunham  vs.  New  England  — ut.  Ins.  Co.,  1 
Law.  Dec.,  253;  Fed.  Cas.,  5  vV'est,  — ;  E.  Free  Ins.  Co. 
vs.  Isaacs.,  1  Q.  B.,  226  (1896);  2  Q.  B.,  377  (1896). 

2.  Packham  vs.  German  Fire  Ins.  Co.,  91  Md.,  515;  46  Hil.,  1066; 

50  L.  R.  A.,  828. 

3.  Peoples  Natural  Gas  Co.  vs.  Fidelity  Title  &  Trust  Co.,  150 

Pa.,  8;  24  Atl. .339. 


434  When  is  the  Claim  Barred. 

"Whether  the  gas  company  is  liable  to  reimburse  the  in- 
surer in  an  action  brought,  in  the  name  of  the  insured, 
for  its  use,  will  depend  on  whether  the  fire  was  the  re- 
sult of  criminal  negligence  of  the  gas  company.  This 
part  of  the  demands  of  the  insured  has  not  been  paid  by 
the  gas  company,  nor  has  it  been  extinguished  by  the 
terms  of  the  release.  On  the  other  hand,  it  has  been  ex- 
pressly saved  from  the  operation  of  the  release  and  as- 
serted to  be  a  valid  claim,  "which  said  party  shall  be 
entitled  to  receive  in  addition  to  and  independently  of 
the  sums  paid  by  the  second  party." 

"After  having  thus  asserted  the  existence  of  the 
claim  as  unpaid,  or  subsisting,  the  gas  company  could 
not  be  heard,  after  the  recovery  against  the  insurance 
company,  to  deny  its  validity  or  to  assert  its  release  or 
extinguishment."1 

The  rule  laid  down  in  these  cases  does  not  agree 
with  the  rule  laid  down  in  the  Packham  v.  German  Fire 
Ins.  Co.  91  Md.  515,  and  the  former  cases  were  decided 
long  before  the  latter  and  the  same  questions  were  prac- 
tically involved  in  both  cases  but  different  conclusions 
were  arrived  at.  The  action  in  the  Maryland  case  was 
against  the  insurance  company  for  the  amount  of  the 
policy  for  the  furniture  and  fixtures,  and  the  loss  sus- 
tained on  furniture  and  fixtures  was,  by  express  agree- 
ment of  the  parties  to  the  suit,  wholly  excluded  from  the 
consideration  of  the  jury  and  from  damages  awarded  by 
the  verdict,  so  the  cases  are  practically  the  same,  but  the 
courts  came  to  opposite  conclusions.2 

SEC.  20.  RIGHTS  OF  THE  INSURER  AGAINST  THE  IN- 
SURED WHERE  THE  INSURANCE  COMPANY  PAYS  THE 
Loss  TO  A  MORTGAGOR  WHERE  THE  INSURED  WAS  THE 
CAUSE  OF  THE  Loss. — An  insurance  company  is  entitled 
to  be  subrogated  to  the  rights  of  the  mortgagee  where 
the  company  issued  a  policy  to  a  person  who  was  the 

1.  Insurance  Company  of  N.  A.  vs.  Fidelity  Title  &  Trust  Co., 

125  Pa.,  523;  16  Atl.,  791;  2  L.  R.  A.,  586. 

2.  Peckham  vs.  German  Ins.  Co.,  91  Md.,  515;  46  Atl.,  1066;  50 

L.  R.  A.,  828. 


Suit  by  the  Insurance  Company  Against  the  Mortgagor.  435 

owner  of  the  premises  at  the  time  and  the  policy  pro- 
vided that,  in  case  naphtha  was  used  or  kept  on  the 
premises,  the  policy  would  become  void,  and  at  the  time 
the  policy  was  issued  there  was  a  mortgage  on  the  prem- 
ises insured,  and  the  policy  provided  that  in  case  of  loss 
the  proceeds  of  the  policy  would  be  paid  to  the  mort- 
gagee to  the  extent  of  his  interest,  and  the  owner  of  the 
premises  sold  the  same  and  the  grantee  assumed  the 
mortgage,  and  the  grantee  had  the  insurance  policy  as- 
signed to  him,  and  the  premises  were  thereafter  destroyed 
by  the  use  of  naphtha  on  the  premises,  and  the  insurance 
company  paid  the  amount  due  to  the  mortgagee  and 
brought  an  action  against  the  insured.1  In  such  a  case, 
no  act  or  default  of  the  owner  of  the  premises  or  the  ten- 
ant of  such  owner  could  defeat  their  rights  of  the  mort- 
gagee, and,  after  the  payment  of  the  mortgagee,  the 
insurance  company  or  its  assigns  could  enforce  the  mort- 
gage against  the  mortgagor. 2 

An  insurance  company  may  pay  the  claim  to  the 
mortgagee  and  then  take  an  assignment  of  the  note  and 
mortgage  and  enforce  them  against  the  mortgagor  where 
the  mortgagor  violated  the  terms  of  the  policy  and 
thereby  caused  the  loss,  and  where  the  policy  provided 
that  no  act  of  the  mortgagor  would  avoid  the  policy  as 
to  the  mortgagee.*  But,  where  the  policy  does  not  pro- 
tect the  mortgagee  against  the  acts  of  the  mortgagor 
and  the  commission  of  such  acts  would  avoid  the  policy, 
the  policy  becomes  void  both  to  the  mortgagor  and  mort- 
gagee,4 but  it  has  also  been  held  that  a  nominal  plaintiff 
could  not  defeat  the  payment  of  the  loss  by  any  act  or 
negligence  on  his  part.6 

1.  Badger  vs.  Platts,  68  N.  H.,  222;  44  Atl.,  296. 

2.  Badger  vs.  Platts,  68  N.  H.,  222;  44  Atl.,  296. 

3.  Travelers  Ins.  Co.  vs.  Race,  142  111.,  338. 

4.  The  Illinois  Mutual  Fire  Ins.  Co.  vs.  Fix,  57  111.,  151;  Hale  vs. 

Mechanics  Mut.  Ins.  Co.,  6  Gray,  169;  People  vs.  Resolute 
Fire  Ins.  Co.,  17  Wis.,  379;  State  Mut.  Ins.  Co.  vs.  Rob- 
erts, 31  Penn.,  438;  Hackney  vs.  Virginia  Fire  &  M.  Ins. 
Co.,  99  Tenn.,729. 

5.  World  vs.  Somerset  Mut.  Fire  Ins.  Co.,  42  Maine,  224. 


IND  EX 


(Figures  refer  to  pages.) 
ABANDONMENT 

of  a  lease  or  grant,  178,  189,  195. 

of  a  lease  where  search  was  made  and  no  oil  or  gas  was  found,  152,  153,  154. 

of  a  homestead,  141. 

of  a  pipe  line,  133. 

of  well,  what  is,  penalty,  22. 

success  or  abandonment  meaning  of  in  lease,  157. 

ABUTTING 

owner  retains  the  absolute  title  where  only  an  easement  passes  to  the 
public,  92. 

ACCEPTANCE 

of  lease  by  lessee,  170,  171. 

of  a  lease  binding  on  lessee  or  his  assignee,  although  signed  only  by  lessor, 

170,  171. 

what  acts  constitute.  171. 
of  rent  by  a  widow  after  the  death  of  her  husband  ratifies  a  voidable 

lease,  146, 147. 
of  rent  from  first  lessee  after  the  execution  of  a  second  lease  by  the  lessor 

will  not  waive  a  forfeiture  as  to  the  second  lessee,  160, 161. 
of  rent  as  waiver  of  a  forfeiture,  158, 159,  160,  161,  162, 163. 
of  an  offer  to  compromise  pending  litigation  binding  on  a  purchaser  of 

stock  in  a  corporation,  164,  165. 
of  an  assignment  of  a  lease,  212. 
of  a  surrender  of  a  lease,  53. 

ACCOUNTING 

for  minerals  taken  under  an  oil  and  gas  lease  where  hostile  claim  is 
made,  70. 

for  rents  due  from  lessee  to  lessor,  70. 

by  surviving  partner,  70. 

by  persons  who  make  a  secret  entry  upon  land  and  take  minerals  there- 
from, 40. 

between  partners,  40. 

presumption  of  law  as  to  the  interest  of  each  partner,  40. 

accounting  on  dissolution  of  partnership,  40. 

by  tenant  for  life  who  was  also  tenant  in  common  in  remainder,  47. 

bill  for  an  accounting  by  the  remainderman  against  the  life  tenant  who 
extracts  oil  and  gas,  48. 

lessee  must  account  to  lessor  where  the  lessor's  land  is  drained  through 
well  operated  by  lessee  on  other  lands,  218. 

ACKNOWLEDG  MENT 

of  a  deed  or  lease  of  the  homestead  for  the  protection  of  oil  and  gas,  140. 
when  necessary  to  pass  the  homestead  estate,  141. 
of  a  deed  or  lease  of  a  married  woman's  lands,  145. 

of  the  validity  of  a  void  deed  of  no  effect  where  no  new  deed  was  exe- 
cuted, 145. 


438  Index. 

ADVERSE  POSSESSION 

nature  of  the  estate  in  oil  and  gas,  65. 

possession  of  the  surface  gives  no  possession  of  the  oil  and  gas  beneath  the 
surface,  65. 

where  separates  were  created  in  the  surface  and  in  the  oil  and  gas  pos- 
session of  one  estate  is  not  possession  of  the  other,  66. 

separate  entry  must  be  upon  each  estate,  66,  67. 

actual  entry  must  be  made  upon  the  mineral  estate  to  give  title  by,  68. 

secret  entry  of  no  avail  to  give  title,  68. 

color  of  title,  payment  of  taxes  on  mineral  estate  will  give  title  to  the  min- 
eral estate  where  separate  estates  were  created  and  the  mineral  es- 
tate comes  within  the  term  of  unoccupied  land,  67. 

no  title  can  be  acquired  where  the  statute  requires  an  actual  residence  on 
the  land,  67,  68. 

entry  upon  the  surface  under  an  adverse  claim  to  the  whole  will  give  ti- 
tle to  the  minerals  where  the  separate  estates  were  created  after  such 
entry,  68,  69. 

entry  upon  the  surface  by  the  owner  of  the  minerals  not  adverse  to  the 
owner  of  the  surface  where  separate  estates  exist,  69. 

possession  of  a  particular  part  of  the  surface  by  the  owner  of  the  miner- 
als must  be  continuous  and  possession  of  different  parcels  and  not  con- 
tinuous not  sufficient,  69. 

receivers  pending  settlement  of  adverse  claims,  69. 

will  not  be  appointed  where  hostile  claimant  is  solvent  and  adverse  claim 
was  acquired  before  petitioner  acquired  his  title,  70. 

AGREEMENT 

in  regard  to  the  location  of  mines,  174. 

when  not  contrary  to  the  Statute  of  Frauds,  174,  175. 

in  regard  to  boundary  lines,  174. 

APPURTENANCES 

gas  main  appurtenant  to  main  plant,  80. 
incorporeal  rights  will  pass  as,  177. 

as  a  general  rule  land  will  not  pass  as  appurtenant  to  land,  177. 
sale  or  lease  of  the  oil  or  gas  in  land  will  carry  sufficient  land  for  the  pro- 
duction, storage,  and  ingress  and  egress  to  the  place  of  operation,  177. 
way  of  necessity  passes  to  reach  minerals  in  a  lower  stratum,  177, 178. 
of  gas  mains  and  pipe  lines,  80. 

ASPHALTUM 
defined,  5. 

ASSIGNMENT 

of  a  lease  creates  no  privity  of  contract  between  lessor  and  assignee  but 

creates  a  privity  of  estate,  212. 
assumption  of  covenants  in  the  lease  by  assignee  binding  although  the 

lease  is  re-assigned,  and  though  made  on  a  separate  instrument,  212. 
lessee  liable  to  lessor  after  assignment,  211,  212. 
lessor  may  assign  royalties,  216. 

BAILMENT 

lessee  is  regarded  as  bailee  of  owner  of  the  land,  176. 

when  meters  and  mixers  of  gas  companies  are  not  bailed  to  the   con- 
sumers, 268,  269. 
BITUMEN 

defined,  5. 


Index.  439 

BOUNDARY 

agreement  not  to  sink  wells  void,  174. 

such  agreement  not  contrary  to  Statute  of  Frauds,  174. 

protection  of  lands  sufficient  consideration,  175. 

state  may  prohibit  mining  up  to  the  boundary  of  adjoining  lands,  175. 

necessary  parties  to  settle  boundary  lines  in  equity,  175. 

CHATTEL,  REAL 

lease  or  license  for  the  production  of  oil  and  gas  a  chattel  real,  176. 

may  be  sold  on  execution  and  purchaser  becomes  assignee,  176. 

may  be  mortgaged,  176. 

and  is  sometimes  treated  as  personal  property,  176. 

on  death  of  owner  leasehold  goes  to  administrator,  176,  177. 

COMMUNITY  PROPERTY 
rights  of  the  wife  in,  48. 
how  lost,  48. 

CONDITIONAL  TITLE 

condition  attached  to  lease  and  deeds  for  mining  purposes,  178. 
failure  to  perform,  implied  conditions,  178. 
forfeiture,  who  may  take  advantage  of,  179. 

DEATH 

caused  by  failure  of  a  gas  company  to  furnish  gas  for  fuel  purposes  in 
cold  weather,  257,  258. 

DEED.    (See  homestead,  lunatics  and  married  women.) 
DESTRUCTION.    (See  Life  Estate.) 

DEVISE 

of  royalties,  216,  217,  218. 

in  separate  tracts  where  lease  was  made  of  the  whole  tract,  216,  217. 
adjustment  of  royalties  among  devisees  where  a  particular  tract  devised 
is  only  operated  upon,  216,  217. 

DIVISION.    (See  Partnership.) 
of  royalties,  217. 
widow's  part,  218. 
among  tenants  in  common  and  joint  tenants,  217,  218. 

DRAINED 

land  drained  through  wells  on  other  lands,  218. 
liability  of  lessee  for  royalty  for  so  doing,  218. 

EMINENT  DOMAIN 

right  to  condemn  land  for  pipe  lines,  128. 

when  title  vests  in  pipe  line  companies,  128. 

condition  precedent,  128,  129. 

acquisition  of  land  by  private  agreement  for  pipe  lines,  128,  129. 

stipulation  in  such  agreement,  129. 

attempt  to  bar  others  from  acquiring  right  of  way  void,  129, 130. 

when  an  agreement  by  a  land  owner  from  whom  a  right  of  way  was  ac- 
quired to  transport  all  oil  through  the  grantee's  pipe  line  is  valid  both 
as  to  himself  and  his  grantees,  129,  130. 

partial  restraint  of  trade  by  parties  engaged  in  a  public  business  void,  130. 

legislative  declaration  of  what  is  a  public  business,  130. 

exclusive  grant  of  right  of  way  void,  130. 


440  Index. 

EMINENT  DOMAIN—  Continued 

personal  covenants  to  do  particular  things  not  binding  on  subsequent 

grantees,  130,  131. 

covenant  to  transport  through  a  particular  pipe  line  not  binding  on  gran- 
tee, 131. 

enforcement  of  personal  covenant  not  favored,  131. 
damages  for  land  taken,  131. 

prospective  damages  from  explosion  and  fires  not  allowed,  131. 
rights  acquired  by  pipe  line  companies,  132. 
right  to  surface  support,  132. 
right  to  release  surface  support,  132. 
when  may  the  surface  support  be  released,  133. 
condemnation  of  the  release  of  surface  support  by  a  land  owner  to  a 

mining  company,  134. 
coal  company  a  necessary  party,  134. 

right  to  remove  pipe  line  on  abandonment  of  the  line,  133. 
right  to  enter  to  remove,  134. 
damages  caused  by  removal,  134. 

pipe  line  placed  across  the  right  of  way  of  a  railroad  company,  135. 
no  right  to  place  pipe  line  on  right  of  way  where  the  railroad  has  the  fee 

and  the  land  owner  on  both  sides  of  the  road  has  but  an  easement  by 

reservation  in  the  original  grant,  135, 
way  of  necessity  to  transport  gas  over  the  right  of  way  by  a  land  owner 

having  land  on  both  sides  of  a  railroad,  135. 
owner  of  a  sub-stratum  of  oil  or  gas  has  a  way  of  necessity  through  a  coal 

mine  to  reach  the  oil  or  gas  below  the  coal,  135,  136,  137. 
pipe  line  on  streets  the  laying  out  of  which  was  declared  void  after  the 

pipe  was  laid,  137. 
right  to  continue  the  use,  137, 138. 
removal  of  pipe  line  by  the  owner  of  the  fee  in  the  highway  when  pipes 

were  placed  there  without  his  consent,  138,  139. 

ESTOPPEL 

of  tenant  to  deny  title  of  his  lessor,  218,  219. 
what  may  be  shown  by  tenant,  218,  219. 

EVIDENCE 

expert  evidence  to  show  the  poisonous  nature  of  gas,  324,  325. 

expert  evidence  to  show  that  the  time  and  manner  of  shooting  a  well  was 

negligence,  367,  368,  369. 
See  Negligence. 

EXECUTORS  AND  ADMINISTRATORS 

when  royalties  go  to,  218 

lease  for  production  of  oil  and  gas  will  pass  to,  176, 177. 

EXECUTION  OF  OIL  AND  GAS  LEASES 

a  lease  of  the  homestead  must  be  the  joint  act  of  husband  and  wife,  140. 
when  is  a  homestead  occupied  under  a  lease  for  the  protection  of  oil  and 

gas,  140, 141. 
wife  cannot  authorize  husband  to  execute  a  lease  by  giving  him  power  of 

attorney,  140,  141. 

to  what  interest  will  a  homestead  estate  attach,  141. 

infants  cannot  make  a  valid  lease  for  the  production  of  oil  or  gas,  141,  142. 
lease  by  infants  voidable,  142. 
permission  from  court  to  lease  infants'  land  must  comply  with  the  law 

with  reference  to  the  disposition  of  real  estate,  142. 
infants  cannot  be  made  parties  by  representation,  142,  143. 


Index.  441 

EXECUTION  OF  OIL  AND  GAS  LEASES—  Continued 

where  infants  are  remaindermen  the  infants  are  entitled  to  the  corpus  of 

the  fund  derived  from  the  oil  and  gas  produced  and  the  life  tenant  the 

income  during  life,  142. 
estoppel  does  not  apply  to  infants  when  they  were  not  made  parties  to  a 

suit,  143. 
infants  need  not  prevent  life  tenants  from  making  improvements,  or 

from  buying  an  apparent  outstanding  title,  143. 
statute  does  not  begin  to  run  against  infants  until  the  death  of  the  life 

tenant,  143. 

father  cannot  sell  or  exchange  his  infant  children's  lands,  144. 
lease  of  land  by  insane  person,  144. 
when  does  title  pass  though  insane,  144. 
lien  of  the  purchaser  on  the  land  for  the  money  paid,  144. 
lease  or  deed  of  an  insane  person  void  when  conservator  was  appointed 

before  sale  or  lease,  144, 145. 
compliance  with  the  statute  in  reference  to  appointment  of  conservator, 

144,  145. 

lease  or  deed  of  married  women,  145. 
requisites  of  such  a  deed  or  lease,  145. 
sale  or  lease  of  land  for  the  production  of  oil  and  gas  by  a  married  woman, 

145,  146. 

when  is  such  a  lease  void,  145, 146. 

when  voidable,  146  147. 

ratification  after  the  death  of  the  husband,  14(5,  147. 

lease  defectively  executed,  147. 

number  of  witnesses,  147. 

when  is  such  a  lease  absolutely  void,  147,  148. 

when  a  good  contract  in  equity  for  a  lease,  147,  148. 

EXPLOSIONS    (See  negligence,  insurance,  etc) 
FIXTURES 

trade  fixtures  defined,  71,  73. 

greater  latitude  allowed  between  landlord  and  tenant  than  between  mort- 
gagor and  mortgagee,  71. 

rules  in  regard  to  the  right  to  fixtures,  first  intention,  second  annexation 
and  third  adaptation,  72. 

what  shows  an  intention  not  to  annex  when  placed  on  land  by  mistake  or 
by  a  license  or  by  a  lessee  for  the  production  of  oil  and  gas,  72. 

right  of  lessee  to  remove,  72,  73. 

when  the  right  to  remove  is  lost,  73. 

when  the  lease  is  silent  as  to  removal,  73. 

when  is  a  lease  regarded  at  end  in  determining  the  right  to  remove  fix- 
tures, 73,  74. 

liability  of  lessor  for  value  of  fixtures  converted  by  him,  74. 

fixtures,  how  taxed,  see  Taxation. 

FORFEITURES.    (See  Leases.) 

GAS 

natural  gas  defined,  6. 

artificial  gas  defined,  7. 

natural  gas  where  found,  6,  7. 
GASOLINE 

death  caused  by,  347,  348,  349. 

failure  to  brand  packages,  350. 

common  law  duty  to  make  known  the  dangers  of,  349. 

delivery  of  gasoline  in  place  of  puroline,  360,  361. 

use  of  gasoline  prohibited  by  a  clause  in  an  insurance  policy  (see  insur- 
ance). 


442  Index. 

HIGHWAYS    (See  Streets  and  Highways) 

HOMESTEAD    (See  Abandonment,  Execution  of  Leases  and  Acknowledgment) 

INDIANA 

form  of  lease,  182,  183,  184. 

when  forfeited  for  failure  to  operate,  183. 

construction  of  lease,  183, 184. 

INSANE  PERSONS    (See  Execution  of  Leases) 
INSURANCE 

as  affected  by  petroleum  and  gas,  402-436 

liabilty  of  an  accident  insurance  company  for  death  caused  by  inhaling 

gas,  403,  4G3,  405,  406. 

particular  provision  against  liability,  402,  403,  404. 

construction  of  such  a  provision  by  the  New  York  courts,  403,  404,  405. 
construction  of  such  provision  by  the  Pennsylvania  courts,  405,  406. 
construction  of  such  particular  provisions  by  the  Illinois  and  Virginia 

courts,  406,  407. 

constructions  of  such  provisions  by  the  federal  courts,  407, 408. 
criticism  of  such  construction  by  the  Wisconsin  courts,  408. 
provisions  in  policies  against  injuries  arising  from  gas  and  petroleum  and 

its  products,  408,  435. 
when  an  insurance  company  is  not  liable  when  petroleum  and  its  products 

are  kept  on  its  premises,  contrary  to  provisions  in  a  policy,  408,  409,  410. 
what  acts  will  not  avoid  a  policy,  410,  411,  412. 
not  made  void  by  the  temporary  use,  411,  412. 

or  where  it  was  customarily  used  at  the  place  where  the  policy  was  issued 
or  where  the  written  portion  covered  and  insured  the  prohibited  articles, 
or  where  the  policy  does  not  become  void  by  the  use  of  the  prohibited  arti- 
cles and  the  loss  is  not  caused  by  such  articles,  419,  420. 
exemptions  from  liability  when  explosions  cause  its  damages,  414,  415. 
not  liable  in  such  a  case  where  no  fire  follows,  414,  415. 
not  liable  where  the  explosion  was  the  proximate  cause  of  the  injury,  415, 

416,  417. 

liable  where  fire  is  the  cause  of  the  explosions,  416, 
liable  where  the  prohibited  article  did  not  cause  the  loss  412,  413. 
liable  when  the  insurer  insures  the  prohibited  article,  419,  420. 
particular  provisions  in  policies  in  such  a  case,  420,  421,  422. 
violation  of  a  provision  in  a  policy  by  a  tenant  is  the  same  as  if  the  owner 

had  violated  such  provisions,  422, 423, 
violation  of  such  a  provision  by  a  husband  after  the  death  of  his  wife  who 

was  the  owner,  422. 

violation  of  such  provision  by  agents,  424,  435. 

when  the  violation  of  the  provision  will  not  effect  the  rights  of  a  mortga- 
gee, 424. 
use  of  the  prohibited  articles  in  making  repairs  when  not  a  violation  of 

the  policy,  435,  426,  427. 

or  the  keeping  of  such  article  when  used  to  make  repairs,  426. 
when  the  hazard  is  considered  as  increased  by  the  use  of  prohibited 

articles  in  making  necessary  repairs,  426,  427,  427. 
construction  of  such  provisions,  426. 
question  of  liability  to  be  determined  by  a  jury,  427. 
payment  of  the  loss  not  covered  by  the  insurance  by  the  wrong  doer,  428, 

429,  430. 
construction  of  an  agreement  between  the  insured  and  the  wrong  doer  as 

to  the  assured 's  right  against  the  insurer,  427,  428,  429. 
when  an  assured  may  maintain  an  action  or  settle  the  damages  with  the 

wrong  doer,  428,  429,  430. 


Index.  443 


consent  of  a  majority  of  the  companies  which  sustained  the  loss  in  such  a 

case,  430. 

right  of  action  by  the  insurer  against  the  wrong  doer,  430. 
such  a  right  based  on  the  right  of  the  insured,  430,  431. 
equitable  doctrine  of  subrogation,  430,  431. 
action  must  be  prosecuted  in  the  name  of  the  insured,  431,  432. 
payment  of  loss  to  the  insured  or  his  release  of  the  wrongdoer  or  his  own 

wrongful  acts  will  bar  an  action  against  the  wrong  doer,  431,  432,  433. 
when  an  insurance  company  will  not  be  estopped  in  such  a  case,  433. 
when  the  rights  of  the  insured  against  the  insurer  is  not  barred  although  a 

settlement  was  made  with  the  wrong  doer,  433,  432,  435. 
right  of  action  by  its  insurer  against  the  insured  when  the  insurer  paid  the 

loss  to  the  mortgagee,  435. 

JOINT  LEASE    (See  Leases) 

of  separate  tracts  of  land,  180. 
division  of  royalties,  180. 
form  of  joint  lease,  180,  181,  182. 

JUDICIAL  NOTICE 

of  the  unstability  of  value  in  mining  property,  178. 
of  the  explosive  nature  of  oil  and  gas,  102. 

LEASES 

for  the  production  of  oil  and  gas,  149  —  200. 

rules  of  construction,  149. 

when  test  wells  must  be  put  down,  149. 

failure  to  put  down  test  wells,  149,  150. 

when  title  to  the  oil  and  gas  vests  under  a  lease  when  test  wells  are  to  be 

put  down,  150. 

meaning  of  the  words  "test  wells,"  150. 
abandonment  of  tests,  effect,  151. 
failure  to  find  oil  in  test  wells,  151. 

what  is  due  deligence  under  an  oil  and  gas  lease,  151,  152. 
lessee  must  follow  the  provisions  of  the  lease  as  to  the  mode  and  manner 

of  operation,  152,  153. 

forfeiture  where  royalty  is  the  main  consideration  for  a  lease,  152,  153,  154- 
effect  of  the  words  "as  much  longer  as  oil  or  gas  is  found  in  paying  quanti- 

tieies,"  153,  154. 

when  judicial  proceeding  are  not  necessary  to  avoid  a  lease,  153,  154. 
when  lease  is  forfeited  from  lapse  of  time,  154. 
optional  leases,  what  are,  154,  155. 
when  optional  lease  is  not  binding,  155. 
when  optional  lease  becomes  effective,  155,  156. 
effect  of  nominal  consideration  on  a  lease  otherwise  optional,  15fl. 
when  must  operation  be  prosecuted  continuously,  156,  157. 
when  is  work  commenced  in  compliance  with  a  lease,  and  what  acts  amount 

to  a  commencement,  157,  158. 
estoppel  of  lessor,  158,  159. 

failure  to  commence  work  or  pay  rent  effect,  159. 
payment  of  rent  on  first  lease  after  forfeiture  and  the  execution  of  a  sec- 

ond lease,  160,  161. 

no  relief  in  equity  from  a  forfeiture,  160,  161. 
failure  of  lessee  to  perform  covenants  and  condition  in  a  lease  will  not  ipso 

facto  work  a  forfeiture,  161,  162. 

when  the  condition  of  forfeiture  must  be  expressed,  152. 
estoppel  of  lessor  to  declare  a  forfeiture,  162,  163. 
surrender  of  a  lease,  acceptance,  binding  on  co-tenant  or  heir,  103,  164. 


444  Index. 

LEASES—  Continued 

surrender  by  assignee,  effect  on  covenants,  164. 

surrender  by  corporation,  effect,  rights  of  stockholders,  164,  165. 

termination  of  lease  by  its  own  terms,  165,  166. 

when  the  phrase  as  long  as  oil  or  gas  is  found  in  paying  quantities  will  not 

prolong  lease,  165,  166. 
selection  of  places  to  operate,  effect,  written  consent,  excepted  places  from 

operation,  166,  167. 

covenants  running  with  the  land,  personal  covenants,  167,  168, 169. 
what  covenants  are  implied,  169. 
implied  covenant  to  sufficiently  develop  the  land,  damages  for  failure  to 

do  so,  169, 170. 

acceptance  of  lease,  170, 171 . 

estoppel  of  lessee  and  co-partners  to  deny  execution  of  the  lease,  171,  172. 
printed  form  of  a  lease  not  competent  to  prove  the  contents  of  a  disputed 

lease,  171, 172. 

description  of  the  land  leased  tracts  to  be  operated  upon,  172. 
eviction  of  lessee,  what  amounts  to,  damage  constructive  eviction,  172, 173. 
merger  of  agreement  in  leases  thereafter  executed  or  the  lease  where  the 

fee  is  acquired,  174. 
forms  of  leases  as  used  in  the  various  states  see  Indiana,  New  York,  Ohio, 

Pennsylvania,  Tennessee,  Texas  and  West  Virginia. 
LIENS 

for  sinking  oil  and  gas  wells,  114, 117. 

on  leasehold  estate,  114, 115. 

for  equipments,  derricks,  for  hauling  pipe  and  drilling  wells,  114,  115,  117. 

preferred  liens  for  labor,  117. 

superintendent  of  pipe  line  may  have  a  preferred  lien,  117, 118. 
lien  for  labor  under  the  general  mechanic  lien  law,  114, 115, 118. 

lien  on  gas  plant  for  furnishing  particular  appliance,  119,  120. 

when  defeated  because  no  lien  is  given  for  particular  appliance,  119,  120. 

lien  for  pipe  furnished  as  appurtenances  to  gas  plants,  116,  119,  120, 

lien  on  oil  refineries  and  appliances,  116,  125,  126. 

lein  will  attach  to  the  interest  of  the  lessee  both  in  the  mine  and  the  sur- 
face, 115,  186. 

when  the  lien  on  the  interest  of  the  lessee  will  attach  where  right  of 
forfeiture  exists,  126. 

lien  attaches  to  the  ground  with  improvement  thereon  and  not  to  the  ma- 
chinery placed  thereon,  126,  127. 

when  a  lien  will  not  attach,  115. 

will  not  attach  to  the  plant  for  oil  used  to  lubricate  the  machinery,  116, 117 

lien  not  lost  or  waived  by  taking  of  notes  for  the  amount  due  for  labor 
and  material,  121, 122. 

presumption  of  law  in  such  case,  121,  122. 

conflicting  liens,  12'?,  133,  124,  125,  126. 

when  a  mechanic's  lien  is  superior  to  a  judgment  lien  or  mortgage,  122, 
123,  124. 

when  a  mortgage  is  superior  to  a  mechanic's  lien,  124,  J25, 126. 

when  a  mortgage  taken  by  a  director  and  stockholder  is  superior  to  a  me- 
chanic's lien,  124,  125. 

when  director  and  stockholder  is  barred  from  acquiring  a  lien,  125, 126. 

right  of  assignee  of  such  director  not  greater  than  the  rights  of  the  di- 
rector, 125,  126. 

MARRIED  WOMEN.    (See  Execution  of  Leases.) 
MASTER  AND  SERVANT 

when  the  relations  exist,  318,  319. 

a  master  is  liable  for  the  death  of  a  servant  when  the  master  sent  the  ser- 
vant to  a  place  of  danger,  323,  335,  341. 


Index.  445 

MASTER  AND  SERVANT—  Continued 

or  where  an  explosion  of  gas  was  caused  by  the  negligence  of  the  fore- 
man, 341. 

not  liable  where  the  direct  cause  of  the  injury  was  the  negligence  of  a  fel- 
low-servant, 340,  341,  342. 

the  master  is  liable  where  a  contract  is  let  to  an  independent  contractor  but 
the  work  was  done  because  of  a  franchise  granted  to  the  master,  342, 343. 

liable  when  the  place  to  work  is  not  safe,  320,  321. 

not  liable  for  an  injury  caused  by  a  defective  ladder  when  the  servant 
had  opportunity  equal  to  the  master  to  ascertain  the  defects,  321,  322. 

liable  when  a  servant  used  a  ladder  contrary  to  the  instructions  of  the 
master  where  the  defect  was  not  the  cause  of  the  injury,  322,  323. 

liable  where  a  defective  oil  still  is  constructed  under  the  directions  of  the 
master  and  it  explodes  and  injures  a  servant,  351,  353. 

liable  for  not  having  stop  cocks  in  pipes  leading  from  an  oil  still  to  pre- 
vent gas  from  returning  to  the  still,  352. 

liable  for  not  having  stop  cocks  in  pipes  to  shut  off  the  flow  of  oil  in  case  of 
danger,  361,  362,  363. 

liable  for  an  explosion  of  gasoline  caused  by  the  negligence  of  another 
servant,  363. 

not  liable  for  an  explosion  of  gas  from  curde  petroleum  when  the  ser- 
vant was  negligent,  352. 

or  the  servant  was  aware  of  the  dangers  and  had  full  charge  of  the  work, 
352,  353. 

not  liable  when  a  servant  went  into  a  water  tank  to  paint  it  and  the  paint 
gave  off  an  explosive  gas  where  the  paint  was  a  well  known  brand  and 
in  general  use,  335,  336. 

liable  for  the  death  of  a  minor  servant  who  did  not  know  the  dangers  of 
petroleum  and  was  not  informed  of  the  danger  by  the  master,  356. 

not  liable  for  the  death  of  a  person  who  went  to  the  assistance  of  a  servant 
overcome  by  gas  in  a  tank  when  the  master  was  not  negligent,  358. 

liability  of  a  shipper  to  the  servant  of  the  consignee,  381,  382. 

liability  of  a  shipper  to  servant  of  the  carrier,  387,  388. 

liability  a  question  for  the  jury,  363,  387,  388. 

liable  where  the  negligence  of  the  master  combined  with  that  of  a  fellow- 
servant.  336. 

when  not  liable  for  an  explosion  of  a  gas  tank,  318,  319. 

or  the  fall  of  the  roof  of  a  gas  room  during  a  fire,  319,  320. 

liable  for  a  trespass  of  its  servant  in  furthering  the  interests  of  the  mas- 
ter, 298. 

MONOPOLIES 

exclusive  right  in  streets  creates  a  monopoly,  108, 109. 

gas  companies  cannot  barter  away  their  right  to  do  business  or  cease 

using  part  of  streets  in  the  interest  of  another  company,  109,  110. 
gas  companies  organized  to  serve  the  public,  110,  111. 
what  act  stamps  the  business  of  a  public  nature,  110,  111. 
violation  of  the  anti-trust  laws,  penalty,  111. 
oil  monopolies,  111. 
Standard  Oil  trust,  111,  112. 
void  at  common  law,  112, 113. 
purchase  of  an  interest  in  a  partnership  in  the  interest  of  the  Standard 

Oil  trust,  112. 
what  things  gas  companies  may  sell  to  customers,  113. 

NAPHTHA 

sale  of  naphtha  for  illuminating  purposes,  346,  347- 

liability  of  the  vendor,  346,  347. 

injury  to  a  servant  from  an  explosion  of,  353,  354. 


446  Index. 

NAPHTHA—  Cont  inued 

injury  to  a  servant  of  the  carrier  when  the  dangers  were  not  known  to 

him,  388,  399. 

escape  of  naphtha  conveyed  through  pipes,  354,  355,  356. 
use  prohibited  by  the  terms  Of  an  insurance  policy,  see  Insurance. 

NEGLIGENCE 

arising  out  of  gas,  94-104;  292-345. 

gas  a  dangerous  agency,  96,  292,  300. 

judicial  notice  of  its  explosive  nature,  102. 

degree  of  care  and  vigilance  required  of  the  vendors  of  gas,  293. 

vendors  must  see  that  gas  does  not  escape  so  as  to  injure  a  third  person, 

292,  293. 

vendors  liable  although  the  injury  could  not  have  been  foreseen,  292. 

may  be  made  liable  for  injuries  without  regard  to  negligence,  293. 

the  escape  of  gas  evidence  of  negligence,  97,  98,  293,  294. 

when  not  evidence  of,  315. 

the  fact  that  gas  escapes  and  does  injury  will  make  out  aprima  facie  case, 

293,  294,  314. 

escape  of  gas  after  notice  evidence  of  protracted  and  inexcusable  negli- 
gence, 294. 
evidence  sufficient  to  show  that  shade  trees  and  shrubbery  were  killed  by 

gas,  102. 

evidence  as  to  the  effect  of  gas  on  vegetation  at  other  places,  315. 
evidence  sufficient  to  permit  an  expert  to  testify  as  to  the  effect  of  gas  on 

vegetation,  314,  315. 
proof  of  the  pressure  of  gas  at  particular  places  to  show  the  pressure  at 

the  place  of  injury,  313,  314. 
preliminary  proof  in  such  a  case,  313,  314. 

to  use  a  lighted  taper  to  locate  a  leak  on  a  street  not  evidence  of  negli- 
gence, 316. 

or  to  drill  a  hole  near  a  gas  main  and  apply  a  lighted  taper,  316. 
to  turn  on  gas  without  properly  testing  service  pipe  is  negligence,  294,  295. 
or  to  put  in  a  defective  meter  or  not  to  repair  it  after  notice,  295,  296. 
or  to  use  a  defective  pipe  in  putting  in  a  drop  light  though  it  was  done 

without  compensation,  296. 

or  to  fail  to  make  a  chandelier  safe  although  done  without  pay,  296. 
or  to  search  for  a  leak  in  a  building  with  a  light,  296,  333. 
or  to  increase  the  pressure  without  notice  to  the  consumer,  307,  308,  309,  310, 

811,  312. 

to  turn  off  the  gas  which  supplied  a  building  composed  of  flats  and  then  to 
turn  on  the  gas  again  without  any  notice  to  the  occupant  of  a  fiat  is 
negligence,  298,  299. 

to  turn  on  the  gas  in  a  building  made  up  of  flats  and  just  constructed  with- 
out inspection  of  the  fixtures  open  to  inspection,  is  299,  300,  301. 
to  disconnect  a  meter  from  the  pipes  and  a  failure  to  put  caps  on  the  ends 

of  the  pipes,  is  301,  302. 

to  leave  a  key  in  a  gas  box  so  that  the  gas  could  be  turned  on  by  a  third 
person  when  the  gas  was  ordered  to  be  turned  off  by  the  consumer, 
is  331,  332.  333. 
to  disregard  the  possibility  of  the  pipes'  being  broken  by  the  construction 

of  a  sewer  near  such  pipes,  is  302,  303. 
or  a  sub-way,  333. 
to  permit  the  escape  of  gas  so  as  to  accumulate  in  the  manholes  of  sewers, 

is  304,  305,  306. 

to  put  in  pipes  without  properly  testing  them,  is  101. 
to  lay  pipes  on  the  surface  of  a  highway,  is  94,  95. 
to  lay  them  on  the  bed  of  a  navigable  river,  is  96. 

to  continue  to  send  gas  through  defective  pipes  though  system  is  pur. 
chased  from  another,  is  99. 


Index.  447 


NEGLIGENCE—  Continued 


to  continue  to  use  defective  gas  mains  after  they  were  injured  by  a  third 
person,  is  100,  101. 

to  open  the  gas  box  of  another  company  by  mistake  and  change  the  press- 
ure from  low  to  high  pressure,  297,  298. 

to  permit  gas  to  escape  so  that  it  is  placed  within  the  power  of  a  third  per- 
son to  do  injury,  345. 

to  operate  a  natural  gas  system  without  a  watchman,  309,  311. 

to  send  a  servant  to  a  place  of  danger  in  a  gas  plant,  323,  334. 

to  furnish  a  servant  an  unsafe  place  to  work,  320,  321. 

to  put  a  water  meter  in  a  place  where  gas  escapes  and  the  water  inspector 
sustains  injuries  from  the  gas,  325. 

to  furnish  defective  ladders  to  a  servant,  331,  322,  323. 

to  lease  premises  with  defective  gas  fixtures,  325,  826,  327. 

to  propel  gas  through  pipes  insecurely  jointed,  336,  337. 

to  permit  gas  to  escape  in  the  gas  works  and  to  provide  no  means  to  have 
it  pass  into  the  open  air,  325. 

concurrent  negligence  of  the  master  and  a  fellow  servant,  336. 

of  the  owner  and  contractor,  336,  337. 

negligence  of  parents,  tenants,  or  servants  a  bar  to  a  recovery,  339. 

when  not  a  bar,  339,  340. 

of  a  fellow  servant  when  a  bar  to  a  recovery,  340,  341. 

when  not  a  bar  to  a  recovery,  341,  342. 

of  an  independent  contractor  no  bar  when  the  injury  results  from  the  ex- 
ercise of  a  franchise,  342,  343,  344. 

Pennsylvania  rule  in  such  cases,  343. 

of  a  third  person  when  not  a  bar,  344,  345. 

of  the  person  injured,  337, 338,  339. 

duty  of  such  person,  337. 

when  danger  will  be  presumed  to  be  known  by  the  person  injured,  337,  338. 

what  will  the  person  be  required  to  do  in  such  cases,  337,  338. 

negligence  in  having  defective  flues,  stove  pipes  or  stoves,  308,  309,  310. 

in  leaving  a  house  with  gas  fires  burning  when  it  is  known  that  the  press- 
ure is  variable,  310,  311,  313. 

vendors  of  gas  not  liable  where  the  gas  was  turned  on  by  a  third  person,  297. 

nor  where  it  was  turned  on  by  a  former  servant,  297. 

nor  where  a  person  is  permitted  to  turn  on  the  gas  at  other  places  and 
vendor  did  not  object,  297. 

nor  for  an  unlawful  trespass  by  an  agent  of  another  company,  297,  S98. 

nor  is  a  gas  company  liable  when  the  negligence  of  a  fellow  servant  caused 
the  gas  to  explode,  341,  342. 

arising  from  petroleum,  346-370. 

injuries  from  the  use  of  naphtha  sold  by  a  refiner  to  a  retail  dealer  and 
by  him  to  a  consumer  who  sustained  injuries,  346,  347,  360,  361. 

sale  of  oil  for  illuminating  purposes  unfit  for  such  use,  346. 

sale  of  gasoline  inherently  dangerous,  347,  348,  349,  350. 

representations  as  to  its  safety  binding  on  the  vendor,  349. 

duty  to  make  known  the  dangers,  349. 

vendor  liable  for  a  failure  to  brand  the  jug  "gasoline"  where  a  daughter  of 
the  vendee  was  injured,  350. 

vendee's  knowledge  of  the  contents  of  the  jug  will  not  excuse  the  vendor, 
350. 

negligence  of  a  servant  of  a  vendor  in  delivering  oil  to  a  vendee,  350,  357. 

whether  the  use  of  a  candle  in  such  a  case  is  dangerous,  351. 

questions  for  the  jury  in  such  a  case,  351. 

injuries  to  a  third  person  caused  by  the  escape  of  naphtha  from  pipes  laid 
on  the  streets  of  a  city,  353,  354,  355. 

duty  to  care  for  its  pipes  and  liable  though  broken  by  the  city,  354,355. 


448  Index. 

NEGLIGENCE-  Continued 

what  is  negligence  in  such  a  case,  353,  354,  355. 

pipes  in  the  street  not  a  nuisance  when  laid  under  lawful  authority,  354, 355. 

question  of  liability  for  the  jury,  354,  355. 

not  liable  for  the  death  of  a  third  person  who  went  to  the  assistance  of  a 

servant  who  was  in  danger  when  the  master  was  not  negligent  to 

either,  358,  359. 
liable  in  such  a  case  where  the  owner  was  negligent  in  leaving  a  ditch 

open  on  a  public  street  without  any  warning  of  the  danger,  358,  359. 
owner  of  the  premises  liable  T\  hen  the  business  is  negligently  conducted 

and  fire  is  communicated  from  such  premises,  359,  360. 
liable  though  the  person  injured  selected  the  place  after  the  owner  of  the 

oil  was  located,  360. 

and  liable  though  the  place  was  sold  by  the  person  injured,  360. 
evidence  of  negligence  in  such  a  case,  360. 

fraud  in  filling  an  order  with  gasoline  when  puroline  was  ordered,  360,  361. 
no  liability  where  the  differences  exist  only  in  name,  360,  361. 
brand  of  an  oil  inspector  when  sufficient  to  inform  a  purchaser,  361. 
falsely  branding  petroleum  or  its  products  by  an  oil  inspector,  360, 
duties  under  the  Iowa  statute,  365,  366. 
liability  wholly  statutory,  366. 
when  the  inspector  is  both  criminally  and  civilly  liable  statute  must  be 

construed  as  a  penal  statute,  366. 
when  a  defective  instrument  will  release  an  oil  inspector  where  the  test 

was  honestly  made,  366. 

inspector  not  liable  where  the  injury  was  from  other  causes,  367. 
negligence  growing  out  of  the  use  of  crude  oil  as  a  fuel,  361,  362,  363. 
escape  of  oil  into  sewers,  363. 
liability  of  the  owner,  363,  364. 
liability  of  a  city  for  turning  oil  into  a  sewer  and  the  oil  formed  gas  and 

exploded  and  killed  and  injured  people,  364,  365. 
injuries  from  shooting  oil  and  gas  wells,  367,  368,  369. 
evidence  of  negligence  in  such  a  case,  367,  368. 
expert  testimony  in  such  a  case,  367,  368. 

liability  of  the  owner  and  the  person  hired  to  do  the  shooting,  368,  369. 
joint  liability,  369. 

injunction  against  shooting  an  oil  or  gas  well  where  dangerous,  369. 
(See  also  Master  and  Servant,  Evidence,  Nuisance.) 

NEW  YORK  LEASE 

form,  failure  to  operate,  construction,  forfeiture,  184,  185. 
execution  of  second  lease,  184,  185. 
what  interest  is  conveyed,  184,  185. 

NUISANCE 

created  by  petroleum  and  gas  396-403. 

what  in  per  se  a,  397. 

what  is  in  fact  a,  397. 

damages  resulting  from  the  natural  development  of  the  land  not  a,  396, 

damages  resulting  from  oil  and  gas  brought  from  other  land  owners  will 
be  guilty  of  maintaining  a,  395. 

damages  resulting  from  the  escape  of  oil  and  gas,  396,  397,  398. 

to  pollute  the  atmosphere  with  disagreeable  oders  from  oil  will  make  the 
owner  guilty  of  maintaining  a,  397,  398,  399. 

to  permit  oil  to  find  its  way  to  a  sewer  will  make  its  owner  guilty  of  main- 
taining a,  398. 

or  to  pollute  a  spring  with  oil,  398  to  taint  the  atmosphere  with  gases  396, 
397,  398,  399. 


Index.  449 

NUISANCE—  Continued 

to  permit  gas  to  escape  from  an  oil  well,  so  as  to  poison  the  air  floating 

over  the  premises  of  another,  397. 
or  from  a  furnace,  386. 
or  from  a  refinery,  398. 
or  from  gas  works,  400,  401. 

when  damages  amount  may  be  recovered  and  by  whom,  396-402. 
injunctions  against  putting  down  gas  wells,  because  they  will  create  a 

nuisance,  399-400. 
when  injunction  will  not  be  granted,  399,  400 

OHIO  LEASE. 

form  of  lease,  190,  191. 

failure  to  operate,  191. 

when  lease  is  terminated,  191. 

lease  defectively  executed  when  a  good  contract  fora  lease,  192. 

assignment  of  lease,  192, 193. 

PARTITION 

of  lands  held  in  co-tenancy,  61. 

co-owners  in  fee  may  have  but  life  tenant  and  owner  in  fee  cannot  have, 

61,  62. 

life  tenant  who  is  also  tenant  in  common  in  fee  may  have,  62. 
partition  of  oil  and  gas  rights  independent  of  surface  void,  62. 
reason  why  partition  cannot  be  made  of  oil  and  gas  independent  of  the 

surface,  62,  63,  64. 

right  to  partition  solid  minerals,  64. 
agreement  not  to  partition,  64. 

PARTNERSHIP 

in  mining,  how  created,  express  and  implied  agreements,  30. 

equal  interests  not  essential  to,  30. 

in  law  partners  are  regarded  as  joint  tenants  or  tenants  in  common,  30. 

principles  of  ordinary  partnership  apply  in  some  instances  but  not  gen- 
erally, 51. 

when  not  liable  as  partners,  52. 

when  relation  of  tenants  in  common  is  not  changed  to  one  of  partnership 
or  what  acts  will  create  a  tenancy  and  not  a  partnership,  31,  32. 

created  where  some  furnish  money  and  others  perform  services  and  all 
share  in  the  profits,  32. 

but  not  in  Pennsylvania  where  the  land  is  held  by  them  as  tenants  in 
common,  32,  33. 

land  may  be  held  by  partners  as  tenants  in  common  and  operated  upon  by 
them  as  partners,  33. 

distinction  between  mining  and  commercial  partnerships,  33. 

mining  partnership  not  dissolved  by  death,  insanity,  imprisonment  or 
bankruptcy,  33. 

each  partner  may  sell  his  interest  without  the  consent  of  his  co-partners, 
and  co-partner  may  buy  the  other's  interest  at  public  or  private  sale,  33. 

cannot  use  partnership  funds  to  buy,  33. 

mining  partnership  cannot  have  any  choice  of  membership,  33. 

one  partner  cannot  bind  another  by  borrowing  money,  or  giving  notes, 
etc.,  33. 

partners  engaged  in  the  production  of  oil  and  gas,  a  mining  partner- 
ship, 34,  35. 

same  rules  apply  as  in  ordinary  mining  partnerships,  34. 

one  partner  cannot  borrow  money,  make  notes  or  pledge  the  credit  of  the 
partnership,  35. 

subscribing  a  certain  amount  by  a  number  of  persons  to  sink  a  gas  well 
will  not  create  a  partnership,  30,  36. 


450  Index. 

PARTNERSHIP—  Continued 

major  owners  control  policy  of  partnership,  36. 

major  owners  may  incur  necessary  expenses,  put  on  repairs,  but  cannot 

direct  property  to  other  uses,  36. 
partner  must  be  compensated  for  wrongful   diversion  of  partnership 

property  or  its  funds,  37. 
lien  of  partners  on  partnership  property,  not  affected  by  recording  laws, 

or  by  pledge  or  sale  or  mortgage  of  partner's  interest,  or  by  payment 

of  the  debt  by  an  interested  partner,  37,  38 
lien  is  lost  where  there  is  a  sale  and  division  or  the  product  is  divided  as 

produced  or  by  agreement  but  not  by  wrongful  exclusion  of  partner, 

38,  39. 
dissolved  by  sale  of  the  whole  property— suits  thereafter  for  breach  of 

contract  arising  out  of  the  sale  must  be  by  each  individual,  39. 
may  be  dissolved  for  discord  or  dissention  among  the  partners,  39. 
receiver  to  wind  up,  39. 
accounting  or  dissolution,  40. 

PENNSYLVANIA  LEASE 

form  of  lease,  193, 194, 195. 

interest  conveyed,  195. 

when  forfeited,  195,  196. 

who  may  take  advantage  of  forfeiture  clause,  196. 

forfeiture  of  lease  by  lessee  for  draining  lands  through  wells  on  adjoining 

lands,  197. 
abandonment  for  failure  to  operate,  197. 

PERSONAL  PROPERTY 

when  oil  and  gas  become  personal  property,  24. 

when  oil  or  gas  is  wrongfully  severed  owner  may  recover  them  by  per- 
sonal action,  94. 

when  oil  and  gas  become  commercial  commodities,  24. 

statute  prohibiting  exportation  of  natural  gas  void  because  gas  when  con- 
verted into  personal  property  becomes  a  commercial  commodity,  25. 

statute  prohibiting  transportation  out  of  the  state  not  a  valid  police  regu- 
lation, 25,  26. 

what  is  a  valid  police  regulation  of  transportation  of  natural  gas,  26. 

right  to  regulate  pressure,  26. 

PROXIMATE  CAUSE 
of  injuries,  330-336. 
what  is,  330. 

contributory  negligence  and  proximate  cause,  330,  331. 
leaving  a  key  in  the  key  hole  after  turning  off  the  gas  is  the  proximate 

cause  of  an  injury  though  a  third  person  turned  on  the  gas,  331, 333, 333. 
escaping  gas  which  forces  other  gases  out  of  a  sewer  and  an  injury  is 

caused  by  the  latter  is  the,  333. 

the  proximate  cause  of  an  injury  to  a  son  is  an  explosion  caused  by  apply- 
ing a  match  to  a  leak  though  the  father  caused  the  leak,  333. 
failure  to  confine  gas  is  the  proximate  cause  of  an  injury  though  a  third 

person  may  have  set  the  gas  on  fire,  333,  344,  345. 
failure  to  put  stop  cocks  outside  a  building  so  that  gas  may  be  shut  off  in 

case  of  danger  is  the,  334,  335. 
but  to  cover  up  such  stop  cocks  is  not  the,  334. 
or  the  absence  of  a  valve  in  a  tank  where  the  servants  of  another  brought 

the  tank  close  to  a  fire,  374. 
the  absence  of  a  valve  in  an  oil  tank  may  be  the  proximate  cause,  361,  362, 

363,  383  384. 
the  escape  of  oil  and  not  the  sewer  which  conducts  it  to  a  place  it  would 

not  reach  is  the  proximate  cause  of  an  injury,  363,  364. 


Index.  451 

PROXIMATE  CAUSE— Continued 

a  defective  pipe  is  not  the  proximate  cause  of  the  injury  where  a  servant 
experiments  to  remedy  the  defect  and  is  injured  by  reason  of  the  ex- 
periment, 333,  334. 

the  bursting  of  an  oil  pipe  caused  by  burning  oil  which  had  escaped  is  not 
the,  335. 

or  the  explosion  of  oil  on  a  right  of  way  where  a  person  entered  voluntar- 
ily upon  the  right  of  way  without  permission,  3o5. 

or  the  escape  of  oil  set  on  fire  by  a  third  person,  335,  336. 

or  the  escape  of  gas  set  on  fire  by  the  owner  of  a  building,  335. 

or  the  high  pressure  of  gas  when  a  stove  is  defective,  310. 

when  the  sale  of  gasoline  is  the  proximate  cause  of  an  injury  to  a  servant 
of  the  purchaser,  349,  350. 

proximate  cause  of  a  loss  in  connection  with  insurance,  415,  416,  417. 

PUBLIC  LANDS 

oil  and  gas  rights  in  227-242. 

when  title  to  minerals  pass  to  a  purchaser,  237,  232. 

location  of  oil  and  gas  claims  in  232,  237. 

the  three  essential  requirements  for  a  solid  location,  discovery,  making  ot 

bounderies,  records,  232. 
who  may  locate  a  claim,  233. 
discovery  of  oil  when  made,  234,  235. 
conflicting  claims,  234,  235  236. 

jurisdiction  of  courts  of  equity  as  to  settlement  of  conflicting  claims, 
234-237. 

RATES  AND  SUPPLY 

Of  gas,  243  to  29^. 

city  may  own  gas  plants  and  supply  gas  both  to  the  city  and  its  people, 

243,  244. 

a  city  may  levy  tax  to  construct  gas  plants  or  buy  gas  wells,  243,  244. 
to  do  so  power  must  be  granted  to  city  by  the  legislature,  244. 
when  such  a  power  is  implied,  244,  245. 

city  may  contract  with  other  parties  to  supply  the  city,  245. 
condition  in  such  contract  to  supply  public  places  free,  245. 
or  to  supply  the  city  free,  245. 

a  city  may  be  liable  on  an  implied  contract  to  pay  for  gas,  246. 
or  may  pay  an  additional  sum  for  each  lamp  if  taxes  are  imposed  on  the 

property  of  the  gas  company,  246. 
the  price  to  be  paid  h>>w  determined  when  based  on  .rates  charged  in 

other  cities,  246,  247. 

when  a  city  is  not  required  to  take  any  gas  from  a  gas  company,  247. 
when  required  to  take  gas,  247. 

when  the  amount  provided  for  in  the  ordinance  is  not  furnished,  247,  248. 
period  for  which  the  contract  to  furnish  maybe  made,  248. 
void  when  contract  extends  beyond  the  period  fixed  by  statute,  248, 
when  a  sale  or  lease  of  a  franchise  to  furnish  gas  will  not  be  allowed,  348, 

249,  250. 

when  a  city  may  sell  or  lease  its  gas  plant  or  wells,  250,  251. 
or  when  assign  its  right  to  furnish  gas  to  a  third  person,  250. 
or  when  stipulate  not  to  engage  in  the  business  of  furnishing  gas,  251 . 
a  gas  company  may  sell  or  lease  or  mortgage  its  franchise  when  allowed 

by  statute  to  do  so,  251. 
when  a  purchaser  acquires  all  the  rights  of  the  company  which  sold, 

leased  or  assigned  its  franchise,  251,  289,  290,  291. 
gas  trustees  operating  plants  owned  by  a  city,  251,  252,  253. 
no  power  to  pledge  the  credit  of  the  city,  252. 
may  use  or  pledge  the  funds  realized  from  the  sale  of  gas,  252. 
no  power  to  employ  one  of  their  own  members  during  the  term  of  office,  352. 


452  Index. 

RATES  AND  SUPPLY—  Continued 

cannot  be  interested  in  contracts  with  the  city,  252. 

aldermen  interested  in  a  gas  plant  cannot  make  a  "binding  contract  to 

furnish  light  for  the  city,  252,  253. 
tout  when  the  contract  is  void  a  city  must  pay  what  the  gas  consumed  was 

vorth,252,  253. 
when  a  contract  to  furnish  lights  creates  a  municipal  indebtedness  for 

the  whole  period,  253. 
when  such  a  contract  creates  an  indebtedness  only  for  the  period  covered 

by  each  payment  for  gas  consumed  during  that  period,  253,  254. 
corporations  have  no  right  to  exercise  a  right  to  use  the  streets  or  furnish 

gas  to  the  public  after  its  charter  power  expires,  254,  255. 
strict  construction  of  grants  from  state,  254,  255. 
duty  of  gas  companies  to  furnish  gas  to  the  public,  255, 256,  257. 
mandamus  will  lie  to  compel  a  gas  company  to  furnish  gas  to  applicants, 

255,  256,  257. 
gas  companies  may  require  a  customer  to  subscribe  to  reasonable  rules 

before  he  is  entitled  to  be  supplied,  255,  256,  257,  261,  262,  263,  264,  i65. 
gas  companies  liable  for  the  death  of  persons  for  the  want  of  fuel  when 

they  undertook  to  supply  the  persons,  257,  558. 
liable  for  failure  to  supply  factories  when  contract  to  supply  was  made, 

258,  259. 

and  when  application  was  made  for  domestic  use,  259. 
gas  company  not  liable  for  damages  when  the  contract  to  supply  was 

void,  259. 

or  a  city  did  not  pay  for  the  gas  already  consumed,  260 
or  when  the  consumer  was  supplied  by  another  company  and  gas  would 

be  used  only  in  case  of  an  accident  in  the  plant  of  the  other  company, 

260. 

when  a  contract  to  supply  is  not  void  for  indefiniteness,  260,  261. 
where  a  court  may  limit  the  use,  261. 

a  rule  that  gas  may  be  shut  off  for  non-payment  oT  arrears  is  valid,  261. 
or  not  paid  by  a  certain  time,  262,  263. 

but  in  carrying  tenants  are  not  liable  for  the  arrears  of  former  occu- 
pants and  must  be  supplied,  261,  262. 
or  the  gas  was  not  paid  at  other  premises,  262,  263. 
or  the  gas  was  used  in  a  wasteful  manner,  262,  263. 
a  gas  company  may  require  a  deposit  to  secure  the  payment  of  gas  to  the 

consumers,  263. 

but  such  must  be  required  of  all  customers,  263,  264. 
a  natural  gas  company  may  reserve  the  right  to  shut  off  the  supply  of  gas 

in  case  the  supply  fails,  263. 

the  rules  of  gas  companies  must  be  reasonable,  264,  265. 
what  rules  are  unreasonable  and  void,  264,  265. 
the  consumer  may  compel  the  company  to  supply  by  mandamus  where 

the  rules  to  which  a  customer  must  subscribe  are  unreasonable  and 

void,  265. 
gas  company  will  be  enjoined  from  shutting  off  the  supply  of  gas  agreed 

to  be  furnished,  and  where  it  is  shut  off  it  must  be  restored,  265, 266,  267. 
a  gas  company  may  also  enjoin  a  customer  who  no  longer  takes  gas  from 

the  company  from  interfering  with  its  pipes,  but  a  gas  company  can- 
not compel  a  customer  to  take  gas,  267. 
small  consumers  cannot  be  compelled  to  pay  more  than  large  consumers 

for  the  same  amount  of  gas,  267,  268. 
and  cannot  be  charged  meter  rents,  267,  268. 
over  charges  may  be  recovered  back,  270,  271. 

no  discrimination  can  be  made  in  favor  of  certain  customers,  244,  273,  274. 
or  in  the  price  because  the  gas  was  worth  more  for  light  than  fuel  pur- 
poses, 274,  275,  288,  289. 


Index.  453 

RATES  AND  SUPPLY— Co ntinued 

but  when  a  high  grade  illuminating  gas  was  furnished  and  it  was  used  for 
fuel  the  value  of  the  gas  as  an  illuminant  may  be  recovered  although 
an  ordinance  required  the  company  to  furnish  both,  289,  290,  291. 

gas  companies  are  quasi  public  corporations,  972. 

and  must  serve  the  public  on  request,  272,  273. 

and  the  business  is  subject  to  legislative  control,  275,  276. 

the  state  may  fix  the  rates,  275. 

and  may  delegate  the  right  to  fix  the  rates  to  cities  and  towns,  276,  277, 278, 
279,  283,  284,  285. 

but  a  few  courts  have  held  otherwise  when  the  city  is  a  consumer,  276, 277. 

the  rates  fixed  must  be  reasonable,  277,  -378. 

the  rates  must  not  make  the  property  a  burden  on  the  owner,  277,  278. 

or  deprive  the  owner  of  all  profit  on  the  investment,  278. 

or  have  the  effect  of  depriving  him  of  his  property  without  due  process  of 
law,  277,  278. 

whether  the  rates  are  reasonable  is  a  judicial  question,  278. 

statute  must  confer  the  right  on  cities  and  towns  to  fix  the  rates,  284,  285 

elements  to  be  considered  in  fixing  rates,  285,  286. 

when  will  such  a  power  be  implied,  285. 

when  is  the  right  to  fix  the  rates  reserved  in  the  law  creating  the  corpora- 
tion or  in  its  charter,  278,  279,  280,  281,  282. 

when  does  the  law  or  charter  give  the  corporations  a  right  to  make  their 
own  rates,  -^81. 

meters  placed  on  the  premises  of  a  consumer  are  not  bailed,  268,  269. 

and  remain  in  the  gas  company's  control,  268,  269,  270. 

no  person  is  entitled  to  place  a  governor  on  them  without  the  consent  of 
the  gas  company,  268,  269. 

mandatory  injunction  to  compel  the  removal,  268,  26t>. 

owner  may  place  governors  on  his  own  pipes,  268,  269. 

removal  of  meters  for  the  non-payment  of  a  service  pipe  put  in  by  the  gas 
company,  269,  270. 

contract  when  binding  on  subscribers  for  gas,  271,  272. 

right  to  withdraw,  271,  272. 

implied  promise  to  pay  for  gas  consumed,  271,  272. 

REMAINDERS 

right  to  oil  and  gas  on  place,  41-49. 

oil  and  gas  as  part  of  the  real  estate,  41. 

no  right  to  oil  and  gas  from  wells  open  when  the  estate  vests,  41,  42. 

leasing  of  land  for  operations  will  be  regarded  as  operated  upon  from 
time  of  leasing,  42,  43. 

when  are  wells  considered  open  wells,  43,  44. 

when  life  tenant  may  open  mines  in  land  held  for  mining  purposes,  45. 

remainderman's  implied  consent  to  open  wells,  45,  46. 

life  tenant  may  prevent  operations  by  remainderman,  45. 

right  of  a  court  of  equity  to  prevent  a  destruction  of  the  estate  in  re- 
mainder by  wells  bored  on  other  lands,  48,  49. 

right  of  the  statutory  life  tenant  to  consume  any  part  of  the  corpus  of  the 
estate,  239,  240,  241,  242. 

RESERVATION 

of  oil  and  gas  from  a  grant,  220-242. 

distinction  between  restriction  and  a  reservation,  220,  225,  226. 
implied  reservation  of  oil  and  gas  from  a  conveyance  of  the  minerals,220,221. 
when  oil  and  gas  are  included  in  a  reservation  of  the  minerals,  221. 
when  oil  and  gas  pass  on  a  conveyance  of  a  highway  to  the  public,  222,  223. 
when  reserved  to  an  abutting  owner  though  the  fee  is  in  the  public,  223,  224. 
when  owner  may  reserve  the  minerals  in  the  dedication,  224,  225. 
implied  right  to  use  the  surface  under  a  reservation  or  grant  of  the  min- 
erals, 226. 

when  the  right  is  limited  for  the  special  purpose  of  taking  the  minerals,  226. 
reservation  of  the  minerals  in  grants  from  the  state  and  United  States, 
227-232. 


454  Index. 

RENTS  AND  ROYALTIES. 

from  land  leased  for  the  production  of  oil  and  gas,  201-219. 

construction  of  oil  and  gas  leases  as  to  the  payment  of  rent  or  royalties,  231. 

leases  construed  more  strictly  against  lessee,  reasons  therefor,  201,  202. 

liability  of  lessee  is  founded  on  priority  of  contract  and  estate,  201,  202. 

when  is  the  lessee  estopped  to  deny  liability,  202, 203. 

when  money  rent  is  due  for  failure  to  operate,  202,  303. 

lessee  cannot  escape  liability  on  his  own  default,  203,  204. 

forfeiture  clause  is  for  the  benefit  of  the  lessor,  203,  204. 

provision  for  a  surrender  of  the  lease  will  not  release  lessee  until  the  lease 
is  surrendered,  204. 

provision  in  a  lease  that  the  failure  of  the  lessee  to  do  certain  things  will 
not  release  lessee  from  liability,  204,  205. 

particular  provision  for  release  of  lessee,  203,  204,  205. 

when  test  wells  must  be  bored,  205,  206. 

number  of  wells  to  be  put  down,  206. 

evidence  of  experts  not  competent  to  show  no  oil  exists,  206. 

lessee  must  sink  the  required  number  of  wells  to  develop  the  land,  although 
the  lease  does  not  so  provide,  206,  207. 

forfeiture  for  failure  to  do  so,  207. 

operation  by  a  third  person  acting  under  the  lessor  and  with  consent  of 
lessee  will  not  release  lessee  from  the  payment  of  rent,  209. 

"paying  quantities"  construed,  209,  210. 

intention  to  surrender  lease  will  not  relieve  from  payment  or  default 
before  lease  was  surrendered,  or  failure  to  use  the  well,  or  notice  of 
an  intention  on  the  part  of  the  lessor  to  declare  a  forfeiture,  209, 210, 211. 

failure  to  use  a  well,  or  a  declaration  of  forfeiture,  or  a  destruction  of  a 
well,  or  the  wells  cease  to  produce,  or  the  well  was  located  on  the  wrong 
land,  or  the  lessor  had  no  right  to  make  the  lease,  or  where  the  lease 
was  a  mere  option,  or  did  not  use  the  well,  and  his  liability  depended 
upon  it  being  used,  will  relieve  from  payment,  205,  207,  209,  210,  211,  212. 

assignee  is  liable  on  the  ground  of  privity  of  estate,  212,  214,  215. 

assumption  to  perform  the  covenants  will  create  a  personal  liability  and 
will  make  assignee  liable  for  past  and  future  defaults,  312,  214. 

when  only  privity  of  estate  exists,  assignee  is  not  liable  for  past  defaults 
before  assignment  or  for  future  defaults  after  assignment,  213. 

liable  for  covenants  broken  while  privity  of  estate  existed,  213. 

assignee  is  liable  to  lessee  when  assignee  acquired  the  lease  subject  to 
rents  reserved  and  lessee  paid  such  rent,  215. 

an  assignee  of  the  lease  from  the  lessor  may  recover  damages  and  rents 
accrued  or  to  accrue  from  lessee  or  his  assignee,  216. 

royalties  due  life  tenant  on  lease  made  before  conveyance  of  the  re- 
mainder, 216. 

division  of  royalties  between  devisees,  216,  217. 

royalties  due  widow,  217. 

payment  to  tenants  in  common,  217. 

REAL,  PROPERTY 

petroleum  considered  as  real  property,  8,  9. 

natural  gas  considered  as  real  property,  9,  10. 

petroleum  and  natural  gas  held  to  be  part  of  the  land  when  a  disposition 

is  made  of  them,  8,  9, 10. 
how  the  estate  in  petroleum  and  natural  gas  differ  from  other  estates  in 

land,  10. 
no  estate  is  vested  until  actually  reduced  into  possession  by  being  brought 

to  the  surface  and  confined  in  pipes  and  tanks,  10,  11. 
estate  in  petroleum  and  natural  gas  compared  to  animals  firce  naturae,  and 

why,  11, 18. 

no  absolute  estate  or  title  in  petroleum  and  natural  gas  and  why,  12. 
claim  to  oil  and  natural  gas  distinguished  from  claim  to  animals flranatvrce, 

12,  13. 


Index.  455 

REAL  PROPERTY-  Continued 

right  of  the  state  to  absolutely  prohibit  the  taking  ot  game,  12,  13. 

a  land  owner  has  an  absolute  right  to  drill  for  oil  and  gas  state  cannot 
deprive  him  of  the  right,  13. 

state  may  regulate  the  mode  and  manner  of  taking  or  acquiring  oil  and 
natural  gas,  14. 

state  may  prohibit  owner  from  committing  acts  which  amount  to  waste  of 
oil  and  gas,  14. 

statute  prohibiting  waste  does  not  deprive  a  person  of  liberty  or  happi- 
ness, 14,  15. 

due  process  of  law  is  not  denied  a  land  owner  by  a  statute  prohibiting 
waste,  15. 

state  may  prohibit  the  taking  of  petroleum  when  it  cannot  be  taken  with- 
out permitting  gas  to  go  to  waste,  15. 

state  may  prohibit  the  use  of  a  gas  pump  to  take  gas  from  wells,  16. 

statute  prohibiting  the  waste  of  petroleum  and  natural  gas  does  not  de- 
prive a  land  owner  of  any  right  which  a  free  government  is  bound  to 
protect,  16 

statute  does  not  encroach  upon  natural  rights,  16. 

limit  of  the  right  of  the  state  to  pass  such  a  statute,  16,  17. 

state  may  prevent  waste  of  oil  and  gas  by  injunction  although  the  stat- 
utes provide  a  penalty,  17. 

continuous  violation  of  a  public  statute  is  a  nuisance,  17. 

individuals  within  a  particular  oil  or  gas  region  may  prevent  waste  by  in- 
junction, 18. 

each  owner's  right  to  take  oil  and  gas  is  somewhat  in  the  nature  of  an  es- 
tate of  tenants  in  common,  18. 

the  use  of  explosives  to  increase  the  flow  of  oil  and  gas  wells  may  be  pre- 
vented by  statute  but  such  a  right  exists  at  common  law,  18,  19,  2P, 

use  of  a  gas  pump  to  take  gas  or  oil  from  the  earth  within  the  terms  of  a 
statute  prohibiting  waste  but  such  a  right  exists  at  common  law,  16,  19. 

reasons  why  the  right  exists  at  common  law,  19,  20. 

the  use  of  new  appliances  to  take  oil  and  gas  will  not  amount  to  waste,  20. 

right  of  an  owner  of  a  well  to  permit  gas  to  flow  from  the  mouth  of  the  well 
and  go  to  waste  when  no  statute  prohibits,  20. 

the  drilling  of  a  well  must  not  be  prompted  by  malicious  motives,  20,  21. 

right  to  take  oil  and  gas  from  the  earth  as  an  incorporeal  hereditament,  23. 

right  to  take  oil  and  gas  an  absolute  property  right. 

grants  and  reservations  of  oil  and  natural  gas  create  but  a  mere  right  to 
produce  oil  and  gas,  23. 

SHOOTING  WELLS 

right  to  increase  the  flow  of  wells  by,  18, 19. 

injuries  to  third  persons  caused  by  shooting  wells,  367,  368,  369. 

injunction  to  prevent  the  shooting  of  a  well,  369. 

STREETS  AND  HIGHWAYS 

judicial  notice  of  the  explosive  nature  of  petroleum  and  gas,  102. 

damages  to  trees  and  crops  by  gas  escaping  in  street  and  highways,  102. 

evidence  required  to  fix  the  liability  of  the  owner  of  gas  for  damages  to 
trees,  102,  103. 

contributory  negligence  of  persons  injured  by  gas  and  petroleum  which 
escaped,  103. 

what  acts  constitute  contributory  negligence,  103, 104. 

when  question  of  contributory  negligence  is  for  the  jury,  104. 

when  the  negligence  of  a  servant  is  a  bar  to  a  recovery  against  a  gas  com- 
pany, 104, 105. 

consent  of  the  city  to  lay  pipes,  105. 

side  walk  part  of  the  street,  105,  106. 

special  acts  giving  gas  companies  a  right  to  lay  pipes,  105, 106, 107. 

restoration  of  street  to  former  condition  by  gas  companies,  liability  for 

failure  to  do  so,  106,  107. 


456  Index. 

STREETS  AND  HIGHWAYS -Continued 

control  of  mains  by  a  city,  107. 

compulsory  extension  of  gas  mains,  107. 

condition  precedent  to  laying  of  pipes  in  streets,  108. 

exclusive  right  in  the  streets,  108. 

when  right  is  not  exclusive,  108, 109. 

right  of  eminent  domain  an  attribute  of  sovereignty,  84. 

time  and  manner  of  taking  in  control  of  legislatures,  84. 

use  must  be  a  public  use  but  use  is  public  when  the  people  have  a  right 
to  demand  services  or  use  of  the  land  taken,  84. 

whether  use  is  private  or  public  a  judicial  question,  84,  85. 

grant  of  the  use  of  the  street  and  highways  to  pipe  line  companies  and  gas 
companies,  85. 

pipe  line  tube  highways,  85. 

right  to  use  streets  and  highways  for  pipe  line  a  public  franchise,  85. 

conveyance  of  gas  and  petroleum  through  pipe  is  the  transportation  of 
freight,  85. 

legislature  may  limit  the  right  of  eminent  domain  to  domestic  corpora- 
tions, 85,  86. 

a  right  to  supply  the  public  must  exist  before  a  party  can  condemn  a 
right  of  way  for  a  pipe  line  to  convey  gas,  86. 

right  to  convey  gas  through  the  street  a  quasi  public  business,  or  is  the  ex- 
ercise of  a  franchise  granted  by  the  state,  86. 

service  to  be  rendered  is  a  public  service,  86. 

entry  upon  the  streets  is  in  the  nature  of  a  right  of  eminent  domain,  86. 

right  of  entry  is  a  license  or  a  contract,  86,  87. 

to  use  the  streets  to  supply  the  public  with  gas  is  a  public  use,  87. 

an  exclusive  use  creates  a  monopoly,  87. 

an  exclusive  use  granted  is  void  where  constitution  or  statute  prohibits 
monopolies,  87. 

right  to  use  street  construed  strictly  in  favor  of  the  public,  meaning  of 
construed  strictly,  87. 

right  given  to  use  street  will  include  streets  thereafter  laid  out,  87,  88. 

ordinance  silent  as  to  the  streets  to  be  used  give  grantee  the  right  to  use 
any  and  all  streets,  88. 

time  by  which  the  streets  must  be  occupied,  88. 

right  of  a  city  to  change  grade  of  a  street,  88. 

injury  and  removal  of  pipes  on  account  of  the  change  of  the  grade,  88. 

use  of  streets  and  highways  to  convey  gas  not  a  primary  use,  88. 

pipe  line  companies  and  gas  companies  cannot  complain  because  of  the 
disturbance  of  pipes  or  change  of  the  street  grade,  88, 89. 

city  may  change  established  grade,  88,  89. 

city  liable  for  damages  when  pipes  were  injured  on  account  of  the  incom- 
petency  of  persons  engaged  to  change  the  grade  or  build  sewers,  89. 

against  whom  the  cost  to  relay  the  pipes  may  be  charged,  89. 

right  of  gas  companies  to  take  up  pavement,  89. 

gas  companies  cannot  be  prohibited  from  taking  up  pavement  to  make  re- 
piars  or  lay  sewer  pipes  when  no  restriction  was  contained  in  the  or- 
dinance when  passed  or  in  other  ordinances  in  force  at  the  time,  89,  90. 

right  granted  by  ordinance  to  lay  pipes  a  contract  and  cannot  be  impaired 
without  the  consent  of  both  parties,  90. 

pipe  lines  on  public  highways,  90. 

consent  of  abutting  owner  must  be  obtained,  93,  91. 

to  lay  pipes  without  consent  of  the  owner  is  a  trespass,  91,  93 

pipes  laid  on  the  surface  of  a  highway  an  unlawful  obstruction,  91. 

owner  not  estopped  though  he  made  no  objection  when  pipe  was  laid,  91. 

consent  of  highway  commissioners,  when  necessary,  91. 

consent  of  commissioner  gives  no  right  to  use  highway  unless  owner 
gives  consent  and  is  paid,  92. 

same  is  true  in  streets  when  fee  is  in  abutting  owner,  92. 


Index.  457 

STREETS  AND  HIGH  WAYS-  Continued 

right  of  the  owner  to  the  land  covered  by  a  highway  is  absolute  except  the 

easement  which  the  public  have  in  it  to  repair  and  travel  over  the 

highway,  92. 

other  uses  made  of  a  highway  is  the  taking  of  land,  93. 
refusal  of  owner  of  the  fee  to  grant  a  right  to  use  a  highway  when  consent 

of  commissioner  is  given  and  gas  company  commenced  to  furnish  gas 

to  the  public  will  not  prevent  the  use  of  the  highway,  93,  94. 
rights  of  owner  in  such  a  case  compensated  in  damages,  93,  94. 
a  grant  of  permission  to  use  highways  cannot  be  revoked,  94. 
pipes  on  surface  of  highway  is  a  nuisance,  94. 
injuries  to  persons  and  property,  91,  95. 
pipes  in  bed  of  streams,  damaging  to  boats,  95,  96. 
lamp-posts  when  nuisance,  96. 
escape  of  gas  on  a  public  street— duties  and  liabilities  of  gas  companies, 

96,  97. 

injuries  to  person  on  the  street,  97. 

escape  of  gas  to  abutting  premises  from  the  street,  97,  9S. 
escape  of  gas  from  street  mains  and  pipes,  98. 
percolation  of  gas  through  the  soil  to  basement,  98. 
defect  in  the  pipe  originally  put  in,  98. 
destruction  of  buildings  and  injuries  to  persons,  99. 
escape  of  gas  from  street  mains  through  sewers  to  buildings,  100. 
when  negligence  to  use  a  lighted  taper  to  determine  the  presence  of  gas,  100. 
negligence  of  a  city  employees  and  servants,  luO. 
pipes  injured  by  third  persons,  100, 101. 
when  gas  companies  are  not  relieved  from  liability  because  pipes  were 

broken  by  third  persons,  101. 

liability  of  a  city  for  defective  pipes  and  appliances  of  gas  companies,  101. 
liability  of  gas  company  to  city  for  damages  paid  by  it,  101. 
judgment  against  city  or  gas  company  conclusive  against  the  wrongdoer 

when  opportunity  to  defend  was  given,  Ml. 

judicial  notice  of  the  explosive  nature  of  petroleum  and  gas,  102. 
damages  to  trees  and  crops  by  gas  escaping  on  street  and  highways,  102. 
evidence  required  to  fix  the  liability  of  the  owner  of  gas  for  damages  to 

trees,  102,  103. 
contributory  negligence  of  persons  injured  by  gas  and  petroleum  which 

escaped,  103. 

what  acts  constitute  contributory  negligence,  103, 104. 
when  question  of  contributory  negligence  is  for  the  jury,  104. 
when  the  negligence  of  a  servant  is  a  bar  to  a  recovery  against  a  gas  com- 
pany, 104, 105. 

consent  of  the  city  to  lay  pipes,  105. 
sidewalk  part  of  the  street,  105, 106. 

special  acts  giving  gas  companies  a  right  to  lay  pipes,  105,  106,  107, 
restoration  of  street  to  former  condition  by  gas  companies,  liability  for 

failure  to  do  so,  106, 108. 
control  of  main  by  a  city,  107. 
compulsory  extension  of  gas  mains,  107. 
condition  precedent  to  laying  of  pipes  in  streets,  108. 
exclusive  right  in  the  streets,  108. 
when  right  is  not  exclusive,  108, 109. 

TAXATION 

minerals  as  land,  75. 

classification  of  land  for  taxation— one  may  own  the  surface,  another  the 

buildings,  and  another  the  minerals,  etc.,  75. 
reservation  of  oil  and  gas  taxable  as  land  and  other  minerals  taxable  as 

land,  75,  76. 
sale  of  oil  and  gras  right  by  which  the  purchaser  acquires  a  base  fee  is 

taxable  as  land,  76,  77. 


458  Index. 

TAXATION—  Continued 

pipe  line  when  taxable  as  land,  77. 

right  to  produce  oil  and  gas  not  taxable  as  personal  property,  where  the 

estate  remains  in  the  lessor  until  oil  or  gas  is  found,  77,  78. 
taxes  cannot  be  levied  on  oil  or  gas  a  lessee  might  produce  in  the  future,77. 
gas  mains  and  pipe  lines,  when  taxable  as  real  estate,  79,  80. 
gas  mains  and  pipe  lines  and  other  appliances,  when  taxable  as  personal 

property,  78,  79. 
gas  mains  and  pipe  lines,  when  taxable  as  appurtenances  to  the  main 

plant,  80. 
when  wells,  mains,  pipes  and  other  appliances  are  taxed  as  part  of  the 

franchise  of  a  corporation,  80,  81,  82. 
exemption  of  cities  from  taxation  where  the  city  owns  and  controls  gas 

plants  and  sells  fuel  and  illuminating  gas  to  private  consumers,  82,  83. 
tax  on  the  product  of  a  pipe  line  passing  through  different  states,  how 

fixed,  validity  of  the  statute,  83. 

TENANTS  IN  COMMON 

common  law  doctrine  of  conveyance  by  co-tenants,  50. 

one  tenant  cannot  sell  or  lease  or  give  a  right  to  take  oil  or  gas  or  other 
minerals,  50. 

lessee  acting  under  a  lease  from  one  co-tenant  a  trespasser  because  the 
tenant  himself  cannot  take  a  part  of  all  the  minerals  or  give  a  third 
person  the  right  to  do  so,  50,  51. 

each  tenant  has  a  right  to  possession,  but  right  of  action  against  a  co-ten- 
ant at  common  law  unless  wrongfully  excluded,  51. 

tenant  wrongfully  excluded  may  recover  value  of  the  oil  taken  by  a  co- 
tenant  without  paying  cost  of  production,  52. 

co-tenant  liable  for  the  value  of  oil  and  gas  taken  without  consent  of  other 
co-tenants,  55. 

no  community  of  interests  between  tenants  in  common  so  one  may  pur- 
chase of  the  other,  or  take  a  mortgage  and  not  be  bound  to  disclose 
the  value  of  the  land,  62. 

no  co-tenancy  exists  between  the  owner  of  surface  and  the  owner  of  a  sub- 
stratum, 52,  53. 

one  co-tenant  may  bind  the  other  for  necessary  work,  or  expenses  of  op- 
eration to  prevent  the  forfeiture  of  the  lease,  53,  54. 

not  bound  for  price  of  labor  in  pumping  a  well  when  co-tenant  offered  to 
do  the  work,  53. 

co-tenant  may  accept  surrender  of  lease,  53. 

not  liable  as  partners,  53,  54. 

case,  trover,  replevin  and  quare  clausen  will  lie,  55,  58,  59,  60,  61. 

measure  of  damages  for  minerals  taken  by  a  co-tenant,  55, 56, 57, 58, 59, 60, 61 . 

injunction  to  prevent  co-tenant  from  taking  minerals,  56. 

partition  between  co-tenants— see  Partition. 
TENANTS  FOR  LIFE 

cannot  open  new  oil  or  gas  wells  because  oil  or  gas  is  part  of  the  realty 
but  may  work  open  wells  or  mines  and  use  reasonable  estoners,  41. 

what  is  an  open  well,  41. 

lawful  leasing  for  the  production  of  oil  or  gas  or  other  minerals  consid  - 
ered  as  an  open  well  or  vein,  41, 42,  43. 

entire  possession  in  the  life  tenant  and  the  reversioner  and  remainder - 
man  have  no  right  to  operate,  43,  45. 

open  wells  or  mines  part  of  the  profits,  43. 

mine  is  open  when  vein  is  punctured,  though  discontinued  before  the  vest- 
ing of  the  estate,  or  when  fuel  was  taken  out,  or  when  rents  are  to  be 
paid,  or  when  life  tenant  is  authorized  to  lease  land,  43,  44. 

land  held  for  mining  purposes  may  be  operated  upon  by  the  life  tenant,44. 

land  may  be  operated  upon  by  consent  of  the  life  tenant  and  remainder- 
men or  their  trustee,  45. 


Index.  459 

TENANTS  FOR  -LIFE— Continued 

estoppel  of  life  tenant  to  claim  dower  in  open  mines,  45. 

open  mines  or  wells  may  be  worked  to  exhaustion  by  the  life  tenant,  45. 

may  use  the  estate  as  it  came  to  him,  46. 

life  tenant  cannot  open  new  wells  or  lease  the  land  for  that  purpose,  or 
consume  any  part  of  the  corpus  of  the  estate,  46. 

wells  opened  by  consent  life  tenant  entitled  to  the  income  from  the  pro- 
ceeds, 46. 

wells  bored  by  life  tenant  estoppel  of  the  remaindermen,  47. 

waste  by  life  tenant,  accounting,  47. 

amount  recovered  for  waste  goes  to  the  remaindermen  at  once,  47. 

no  allowance  made  for  improvements  in  a  court  of  law  but  otherwise  in 
equity,  48. 

right  of  remaindermen  to  go  into  equity  to  protect  the  land  from  being 
drained  of  oil  and  gas  through  wells  on  other  lands,  48,  49. 

right  of  the  court  to  permit  operation  on  the  land  or  make  a  sale  of  the 
property  to  prevent  its  destruction,  48,  49. 

TENNESSEE  LEASE 

form  of  lease,  197, 198, 199. 

removal  of  lease,  198,  199. 

when  notice  must  be  given  lessee  before  forfeiture  is  declared,  199. 

when  a  lease  is  executory,  199. 

conditions  attached  to  leases,  199. 

TEXAS  LEASE 

forfeiture  clause  for  failure  to  operate,  200. 

when  work  is  commenced,  200. 

what  facts  will  establish  the  commencement  of  operations,  200. 

TRANSPORTATION 

of  oil  370  to  395. 

duty  of  a  carrier  to  furnish  a  safe  vehicle,  370. 

duty  continues  only  during  the  time  of  transportation,  373. 

delivery  and  transportation  of  oil  in  the  cars  of  a  vendor  of  the  oil  as  a 
bailment  of  the  car  by  the  vendor  of  the  oil  to  the  vendee,  370  to  388. 

example  of  such  a  bailment,  to-wit,  Goodlander  Mill  Co.  vs.  Standard  Oil 
Co.,  and  the  facts  on  which  a  suit  was  brought  by  a  third  person,  370, 
371,372, 

absence  of  a  valve  in  the  discharge  pipe  of  the  car  bailed,  373. 

car  need  be  safe  only  so  far  as  to  encounter  the  usual  risks  of  transpor- 
tation, 373. 

whether  a  car  is  safe  which  leaks  while  in  the  hands  of  the  carrier,  373, 374. 

shipment  of  crude  petroleums  in  a  tank  car  not  like  a  secret  shipment  of 
explosives,  373. 

whether  the  public  are  benefited  by  knowing  the  contents  of  a  leaking 
tank  car  when  the  public  have  no  control,  over  such  a  car,  373,  374. 

abscence  of  a  valve  to  control  the  flow  of  oil  when  not  the  proximate  cause 
of  an  injury,  374,  375. 

continuing  negligence  when  the  car  leaked  before  delivered  to  the  con- 
signee, 374,  375. 

use  of  a  discharge  pipe  as  it  was  intended  to  be  used,  375,  376. 

liability  of  a  bailor  for  defects  in  an  article  at  the  time  the  article  was 
bailed,  375,  376. 

bailment  of  an  article  unsuitable  for  the  purposes  for  which  it  was  bailed, 
377,  378,  379. 

liability  of  a  bailor  of  horses,  carriages,  and  other  appliances  to  the  bailee 
and  third  person,  379,  380. 

application  of  the  doctrine  in  such  cases  to  the  bailor  of  a  defective  oil 
tank,  379,  380. 


460  Index. 

TRANSPORTATION— Continued 

liability  of  the  bailor  of  a  defective  vehicle  used  to  transport  goods  to  the 
servants  of  the  bailee,  381,  383. 

duty  of  the  bailor  of  a  defective  article  to  give  notice  of  defects  to  the 
bailee,  382,  383. 

presumption  of  the  presence  of  the  valve  in  the  tank  car  in  question,  382. 

concurrent  negligence  of  the  bailor  and  the  servants  of  the  bailee  when 
the  injury  is  to  the  third  person,  382,  383. 

negligence  of  the  consignee  of  a  tank  car  of  oil  in  bringing  it  in  close 
proximity  to  a  fire  as  a  new  and  efficient  cause,  383,  381. 

such  a  question  a  question  of  law  for  the  court,  383,  384. 

in  a  like  case  such  a  question  was  held  to  be  a  question  of  fact  for  the  jury 
to  determine,  384,  385,  386. 

a  vendor  may  be  liable  to  third  person  though  title  passed,  386,  387. 

liability  of  a  shipper  of  naphtha  to  a  servant  of  the  carrier  when  the  ser- 
vant is  not  informed  of  the  danger  of  the  article,  387,  388. 

liable  though  the  carrier  knows  that  naphtha  is  shipped  and  the  servant 
does  not,  387,  388. 

contributory  negligence  of  the  servant,  388. 

evidence  of  experts  in  such  a  case,  388. 

injury  to  a  passenger  caused  by  an  explosion  of  oil,  38?,  389,  390,  391. 

when  the  relation  exists,  390. 

notice  of  danger  to  the  passenger,  389. 

duty  of  the  passenger  to  avoid  the  danger,  389,  390. 

contributory  negligence  of  the  passenger,  390. 

passenger  must  exercise  ordinary  care,  390. 

carrier  bound  to  exercise  only  ordinary  care  for  the  safety  of  the  passen- 
gers, 390. 

special  finding  of  a  jury  in  such  a  case,  390. 

question  of  negligence  in  such  a  case  for  the  jury,  391. 

storage  of  oil  at  a  railroad  station  contrary  to  a  statute,  394. 

proximate  cause  of  an  injury  in  such  a  case  where  a  fire  is  started  by  a 
third  person,  394,  395. 

storage  contrary  to  a  statute  or  an  ordinance  will  make  the  violator  of 
the  statute  or  ordinance  liable  without  regard  to  the  negligence  of 
others,  890. 

injuries  to  a  person  who  came  on  the  right  of  way  of  a  carrier  and  was  in- 
jured by  an  explosion  of  oil,  391,  392,  393. 

negligence  of  the  railroad  company  in  such  a  case,  391,  392. 

when  the  railroad  company  is  not  liable,  392,  393. 

duty  of  the  railroad  company  toward  such  persons,  392,  393. 

negligence  of  a  railroad  company  in  delivering  a  defective  car  to  an  oil 

,     company  to  be  loaded,  393,  394. 

injury  to  the  property  of  a  third  person  in  such  a  case,  393,  394. 

servant  of  the  oil  company  a  servant  of  the  railroad  company  in  such  case 
where  the  property  of  a  third  person  is  destroyed,  393,  394. 

WASTE 

what  amounts  to,  241,  242. 

to  opening  oil  and  gas  by  life  tenant,  46,  47. 

to  lease  land  by  life  tenant  for  the  production  of  oil  and  gas,  46. 

when  tenant  in  remainder  is  estopped  from  claiming  acts  of  life  tenant 
are  waste,  47. 

by  statutory  life  tenant,  whether  liable  under  the  statute  of  Marlbridge 
and  Gloucester,  239,  240,  241,  242. 

not  waste  to  extract  mineral  from  land  valuable  only  for  mining  pur- 
poses, 239,  240. 

when  a  court  of  equity  will  not  interfere  to  stay  waste  committed  by  the 
owner  of  a  base  fee,  237,  238,  239. 


Index.  461 

WASTE—  Continued 

when  future  acts  of  waste  by  an  owner  of  a  base  fee  will  be  enjoined,  238, 

229. 

by  a  tenant  in  common,  50,  55,  56,  238. 
of  gas  by  a  consumer,  260,  261,  262. 

statute  prohibiting  waste  of  oil  and  gas  by  producers,  14, 15, 16, 17,  18. 
by  the  owner  of  oil  and  gas  where  no  statute  prohibits,  20,  21. 

WELLS 

no  right  to  bore  wells  for  the  purpose  of  injuring  others,  21,  22. 

abandoned,  22. 

what  acts  amount  to  the  commencement  of  a  well  under  the  terms  of  a 

lease,  157, 158,  159. 
on  boundary  lines,  17f\ 
for  protecting  land  from  drainage,  169,  170. 
when  opened,  44-47,  50-60. 
lien  for  sinking,  114,  115,  117,  126. 

drilled  to  determine  the  productiveness  of  the  land,  150, 151,  S02. 
test  wells  as  a  condition  in  a  lease,  199. 

WEST  VIRGINIA  LEASE 
form,  185,  186,  187. 
forfeiture,  187. 

execution  of  second  lease,  187. 
sufficient  declaration  of  forfeiture,  187,  188. 
failure  of  second  lessee  to  operate  within  the  time  specified  in  the  lease 

when  first  lessee  proceeds  to  operate,  187, 188, 189. 
interest  conveyed  to  lessees,  189. 
right  of  lessor  to  terminate  lease,  188, 189, 190. 
when  title  vests  in  lessee,  185-190. 
when  operations  are  commenced  in  compliance  with  the  lease,  190. 


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